Santosh Jambu Koge vs The State Of Maharashtra
2017 Latest Caselaw 6827 Bom

Cri. Appeal No.968 of 2010

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.968 OF 2010 

Santosh Jambu Koge,                                                  ]
Age: 21 years, Occ: Agriculture,                                     ]
Residing at Koge Galli,                                              ]
Chinchwad, Taluka : Karveer,                                         ]
District : Kolhapur.                                                 ]
(At present lodged at Kalamba                                        ]
Central Prison, Kolhapur)                                            ]..Appellant 

         Versus 

The State of Maharashtra,                                            ]
Through Gandhinagar                                                  ]
Police Station, District: Kolhapur                                   ]..Respondent

Shri. Uday P. Warunjikar for the Appellant.
Mrs. P. P. Shinde, APP for the Respondent - State.  

                                      CORAM :   R. M. SAVANT & 
                                                  SMT. SADHANA S. JADHAV, JJ. 

                                      JUDGMENT RESERVED ON : 18.07.2017 
                                      JUDGMENT PRONOUNCED ON : 06.09.2017

JUDGMENT (Per R. M. Savant, J) 

1 The conviction of the accused i.e. the Appellant herein above

under Section 302 of the Indian Penal Code (For short "IPC") and he

being sentenced to suffer life imprisonment and pay a fine of Rs.5,000/-

by the judgment and order dated 19.11.2010 passed by the Learned

Sessions Judge-4, Kolhapur is taken exception to by way of the above

Appeal.

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2                 The case of the prosecution is as follows :-

That the Complainant was one Ajit Annaso Patil. In the said

complaint, the Complainant has stated that he resides with his family, his

brother by name Shital Patil, brother's family and parents. It is stated by

him that on 06.05.2009 at around noon time, there was marriage

ceremony in their village. The marriage was of one Rajendra Sahadev

Jadhav, near Renuka Mata Temple. It is stated by him in the complaint

that his brother Shital Patil went on his motorcycle to attend the said

marriage, for which he had left the house at around 12.15 noon. It is

further stated by him that shortly thereafter while he was in his house

one Subhash Aappaso Patil came running to his house and informed him

that his brother Shital Patil was beaten by Santosh Jambu Koge and

Shital Patil had fallen unconscious. On receiving the said information, the

Complainant immediately thereafter, along-with the said Subhash

Aappaso Patil went towards the house of Shinde and found that Shital

Patil was unconscious on the road and there was bleeding through his

mouth and nose. He has further stated that he has asked one Ashok

Maruti Shinde who was standing there as to what had happened, who

informed the Complainant that the Complainant's brother Shital Patil

who had come to attend the marriage, parked his motorcycle opposite

house of Ugale, whilst he was walking, Santosh Koge was standing there

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and the said Santosh Koge asked Shital Patil as to why he is staring at

him and also asked him as "Masti Aali Kay" thereafter slapped Shital

Patil. Upon which, Shital Patil pushed him and Santosh Koge lifted Shital

Patil and threw him on the tar road, caught hold of his face and banged

him on the tar road and also gave kicks and fist blows on his chest. He

has further stated that one Pradeep Magdum, Anil Londhe and Maruti

rescued Shital Patil. It is further stated by him that one car which had

come for the marriage, was used for shifting Shital Patil to the C.P.R.

Hospital, Kolhapur. However, the doctor examined Shital Patil and

declared him dead and accordingly he has registered the FIR at

Gandhinagar Police Station at 15.05 hours under Section 302 of the IPC

vide Crime No.38 of 2009.

3 The Investigating Officer was one Rajkumar Vishnu Kotmire

who after carrying out investigation and completing the same filed

charge-sheet. Since the case was triable by the Sessions Court, the

Learned JMFC by order dated 29.10.2009 committed the case to the

Sessions Court.

4 The prosecution has led the evidence of 16 witnesses. The

said evidence has to be compartmentalized into three sections, namely

the evidence of the incident in which the death of the deceased Shital

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Patil occurred, the cause of his death and the evidence in respect of the

mental condition of the accused at the time of commission of the offence.

The said evidence would therefore have to be taken one by one.

EVIDENCE IN RESPECT OF THE INCIDENT

5 In respect of the incident, the evidence of the complainant

i.e. Ajit Patil and the four eye witnesses is required to be seen. The

complainant Ajit Patil deposed as PW-2. He has stated in his evidence that

on 06.05.2009 he and his brother Shital Patil were in the house and

thereafter Shital Patil went to attend the marriage of one Rajendra

Sahadev Jadhav who was from their village at Renuka Mata Temple. It is

his deposition that around 12.30 p.m. Subhash Patil came and informed

him that his brother Shital Patil is unconscious and asked him to

accompany him. It is his evidence that they both rushed to the spot of the

incident which is just opposite to the house of Ashok Shinde on the tar

road and there Shital Patil was lying in an unconscious condition. PW-2

claims to have asked Ashok Shinde as to how and what had happened

and he was informed by Ashok that Santosh Koge got hold of Shital Patil

by his face and banged his head on the tar road. PW-2 claims to have

seen Shital Patil bleeding through his mouth, nose and there was blood

clotting in the left eye of Shital Patil. It has further come in his deposition

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that at that time, Ashok Shinde, Pradip Magdum, Subhash Patil and Anil

Patil together took Shital Patil to C.P.R. Hospital. However, on

examination there he was declared to be dead. He has further deposed

that he personally went to Gandhi Nagar, Police Station and registered a

complaint against the accused Santosh Koge which was taken as narrated

by him. The said witness has also given description of the clothes on the

person of the deceased Shital Patil to be the same shown to him in the

Court.

6 The next witness is PW-3 Ashok Maruti Shinde who has

deposed about the marriage in the village on 06.05.2009 and the fact

that Shital Patil had come to attend the marriage. It has come in his

evidence that Shital Patil met Santosh Koge near his house and saw Shital

Patil calling Santosh Koge as "Kay Chotu" and thereafter Santosh Koge

slapped Shital Patil Patil. He has further deposed that there was quarrel

between Santosh Koge and Shital Patil. Upon which, Santosh Koge caught

the face of Shital Patil and banged his head on the tar road. Thereafter on

account of the same, Shital Patil felt unconscious. He has further deposed

that Pradip Magdum, Subhash Patil and Anil Patil and this witness rushed

to the rescue of Shital Patil and tried to separate Santosh Koge. He has

further deposed that at that time accused Santosh Koge freed himself and

started dancing on the chest of Shital Patil. Seeing Shital Patil bleeding

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from the mouth and nose, he sent Subhash Patil to call for the brother of

Shital Patil who came there in a short time and the information about the

incident was passed on to him. The said witness further deposed that one

vehicle which had come for the marriage was used for shifting Shital Patil

to the C.P.R. Hospital, Kolhapur. The witness has deposed that he

accompanied others to the hospital and that the doctor examined Shital

Patil and declared him to be dead on arrival. The said witness has

identified the accused who was present in the Court.

7 The next witness is Pradeep Shripati Magdu - PW-4. He has

stated that he saw Shital Patil parking his motorcycle near the house of

Ugale and thereafter proceeding towards the venue of marriage and he

heard Shital Patil calling Santosh Koge as "Kay Chotu" and thereafter

Santosh Koge slapped Shital Patil upon which Shital Patil pushed Santosh

Koge. He has further deposed that Santosh Koge caught hold of Shital

Patil and said "Masti Aali Kay" and banged him on the tar road. He

banged his head on the road twice thrice and give kick blows on the chest

of Shital Patil. He has further deposed that others tried to rescue both of

them and at that time Shital Patil was lying on the road bleeding through

his mouth, nose and lying in an unconscious condition. He has further

deposed that Shital Patil was shifted to C.P.R. Hospital, Kolhapur. The said

witness has stated that even Ashok Shinde was standing at the door of his

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house at the time of incident. He has further deposed that doctor

examined Shital Patil and declared him to be dead after which the

brother of Shital Patil filed complaint to the Police. The said witness has

also identified the accused who was present in the Court as Santosh

Koge.

8 The next witness is PW-5 - Subhash Appa Patil. He has

deposed that near the house of Ashok Shinde, the accused Santosh Koge

was sitting and he heard Shital Patil calling the accused as "Kay Chotu

Baslas Kay". The accused got annoyed and caught hold of Shital Patil

thereafter Shital Patil pushed him and that he saw Santosh Koge making

Shital Patil fall on the ground holding his face and banging his head on

the tar road. The said witness has further deposed that Santosh Koge

gave Shital Patil fist and kick blows. It has further come in his deposition

that Pradip Magdum, Anil Patil and and Ashok Shinde tried to separate

Santosh Koge and at that time Shital Patil was unconscious. He has

further deposed that Ashok Shinde was asked to call the brother of Shital

Patil, Ajit Patil who came there immediately and the entire incidence was

narrated to him by the said witness and also shifted Shital Patil to C.P.R.

Hospital, Kolhapur, where he was examined by the doctor and the doctor

declared him dead on arrival. The said witness also identifies the accused

as Santosh Koge who is present in the Court.

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9                 The next witness in respect of the incident is PW-7 - Sharad 

Annaso Patil. He has deposed that he knows both accused and deceased

as they are from his village. That on 06.05.2009, the said witness was

coming to attend the marriage of Rajendra Jadhav at around 12.30 p.m.

and whilst he was proceeding towards the marriage venue, the witness

claims to have seen Santosh Koge beating Shital Patil in front of the

house of Sandeep Ugale. This witness also claims to have rushed to the

spot and he found Shital Patil unconscious. He has further deposed to

have seen Pradeep Magdum, Anil Patil, Subhash Patil and Ashok Shinde

separating Santosh Koge and thereafter Santosh Koge went to his house

and Subhash Patil went to call Shital's brother Ajit Patil who was

informed about the incident. The said witness also deposed that Shital

Patil was shifted to C.P.R. Hospital and he has further deposed that he

later on learnt that Shital Patil has expired.

10 In so far as the spot of the incident is concerned, the

evidence of PW-10 - Suresh Malgonda Patil is relevant. The said witness

was panch to the Spot Panchanama which was drawn by the Gandhi

Nagar Police Station which spot was shown by Ashok Shinde whose

house is opposite to the house of Sandeep Ugale at village Chinchwad.

He has deposed that on the spot there was blood on the tar road and

thereby the Police claimed to collect the sample of tar and rubble with

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and without blood and thereafter Panchanama was drawn which is at

Exh.37. In so far as the recovery of the clothes of the accused Santosh

Koge are concerned, the witness Sanjay Nemgonda Patil has deposed to

the same. He has deposed that it is in his presence the accused made

disclosure, of which Panchanama came to be drawn and in pursuance

thereto the accused took the Police and the witnesses to his house which

is to the eastern side of the Gram Panchayat of village Chinchwad. It has

come in his deposition that the house was locked and the keys of the

same were obtained from the sister of the accused. After entering the

house, the shirt which was hanged to the almira was pointed out by the

accused and the same came to be seized by drawing Panchanama which

is at Exh.34. The said witness has identified the shirt shown to him in the

Court.

11 The next witness is PW-8 - Sharad Jingonda Patil. He has

deposed that the constable handed over the clothes which were seized

and labled by drawing Panchanama at Exh.31. In the said connection, the

PW-12 and 13 who are the carriers of Muddemal properties have

deposed. The next witness on behalf of the prosecution in respect of the

incident is PW-16 the Investigating Officer who has carried out the

investigation after registration of the crime and has filed the charge-sheet

against the accused in the Sessions Court.

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EVIDENCE IN RESPECT OF CAUSE OF DEATH :- 



12                Now, coming to the evidence in respect of the cause of death 

of Shital Patil. The evidence of PW-14 - Dr. Reshma Paygonda Patil is

relevant. She is the doctor who has carried out the autopsy i.e.

postmortem of the dead body of Shital Patil. She has deposed that the

cause of death was due to rupture of lever and head injury. She has

further deposed that injuries mentioned in the postmortem report in

column Nos.17, 18, 20 and 21 are capable of causing the death of a

person. She has deposed that injuries are possible by banging the head on

the road or dancing over the abdomen and chest. The said witness has

deposed that because of such beating ribs could get fractured and would

further lead to injury to lever, which may be lacerated wound. The next

witness is the Assistant Police Inspector of Gandhi Nagar, Police Station,

who at the relevant time claims to have received telephonic message of

the doctor from C.P.R. Hospital, Kolhapur regarding admission and expiry

of Shital Patil and accordingly he has recorded Vardi which is at Exh.50.

EVIDENCE IN RESPECT OF THE MENTAL CONDITION OF THE

ACCUSED :-

13                The   evidence   adduced   by   the   defence   is   principally   to 



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support its case of the unsoundness of mind of the accused Santosh Koge

at the time of the incident. The defence has examined three witnesses.

The first is Dr. Parshwanath Monappa Chougule who is DW-1. He claims

to be MD Psychiatrist by profession. He has stated in his evidence that the

accused was working as receptionist in his clinic under learning and

earning scheme. It has further come in his evidence that two to three

years later the accused was brought by his relative to him with a

complaint of abnormal behaviour during the period 1999 to 2000. The

complaint was of Santosh Koge i.e. accused being disorganized,

sleeplessness, irrelevant talks, armless wandering. He has further stated

that he prescribed the accused psychotropic drugs and electro convulsive

therapy and as such he was under his treatment for 13 days. He has

further stated that the said illness of the accused was under control on

account of the drugs. He has further stated that the period of illness may

vary from patient to patient and may be at times periodic and even life

long. The said witness has in terms stated that abnormality in such

patients arises on account of provocation.

14 The next witness is Dr. Shivajirao Ramchandra Patil - DW-2.

He is medical officer who was posted at Kalamba Jail since 2006. He has

stated that in his capacity as medical officer he has treated the under trial

accused Santosh Koge on account of bullet injury which was caused on

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09.07.2009. The said witness has stated that the under trial accused on

being shifted to the Central Jail i.e. while at Sub Jail he was treated at

CPR Hospital, Kolhapur on account of psychological stress and was under

medication by way of pills which were continued to be prescribed to him.

The said witness has further stated that the patient is now normal and he

is also under medication. It has further come in his evidence that the

under trial accused was prescribed pills for his said illness by the previous

doctor who has treated him namely Dr. Kavita Jain. Through the said

witness the medical case papers were placed on record.

15 The last witness on behalf of the defence was Dr. Sumitra

Vijaykumar Debsikdar - DW-3. The said witness stated that she has

acquired MD qualification and is working as consultant Psychiatrist for

the last one year. She has stated that she has her hospital by the name of

"Krupamai Health Institute, Miraj". She has further stated that the patient

by name of Santosh Koge was treated there on being brought by his

relatives to her hospital. She has further stated that the patient was

supposed to have violent behaviour and was initially treated by Dr.

Chougule at Kolhapur. She has further stated that the said treatment was

discontinued and the said behaviour i.e. violent in nature was being

exhibited since last four days prior to him being brought to her hospital.

The said witness claims to have examined the accused Santosh Koge and

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found him to be acutely disturbed and was suffering from Chronic

Schizophrenia in acute exacerbation. She has further stated that the

accused was treated from 14th October to 27th October and was given anti

psychotropic drugs. She has further stated that after discharge from the

hospital, the patient was given follow up from 2005 to 2006 upto

November 2007. It has further come in her evidence that the patient did

not come thereafter, but his sister had paid a visit in May, July 2008 and

informed her that the patient had again became irritable, argumentative

and aggressive, but in spite of asking the patient to be brought to the

hospital, he was not brought. She has further stated that if the patient

does not take continuous treatment, there is possibility of a relapse in the

patient's condition. The aforesaid evidence as indicated above has been

adduced by the defence in support of its case that the accused was in a

state of unsound mind at the time of the said incident.

16 The Learned Counsel appearing on behalf of the Appellant,

Shri. Uday Warunjikar would make two fold submissions. It was the

submission of Shri. Uday Warunjikar that the evidence on behalf of the

prosecution and more especially evidence of the eye witnesses make it

absolutely clear that it was on account of the words uttered by the

deceased Shital Patil to the accused that the accused was provoked and as

a result he assaulted Shital Patil in the manner depicted by the said eye

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witnesses. It was the submission of the Learned Counsel that the said

provocation was on account of the deceased making personal remarks

against the accused that the accused was provoked and resultantly

assaulted the said Shital Patil. The Learned Counsel would submit that

the reaction of the accused was on the spur of the moment and was not a

premeditated action to murder the deceased. Hence, the instant case is a

case which is covered by Section 304 part II of the IPC and the Learned

Sessions Judge had therefore erred in convicting the accused under

Section 302 of the IPC. Reliance is sought to be placed on the judgments

of the Apex Court reported in (2012) 5 SCC 703 in the matter of

Sukhlal Sarkar Vs. Union of India and others and (2015) 1 SCC 286 in

the matter of B. D. Khunte Vs. Union of India and others.

17 The next submission of the Learned Counsel was that the

evidence adduced on behalf of the defence amply proves the case of the

defence that the accused was not in a proper frame of mind at the time of

the said incident. The Learned Counsel would place reliance on the

evidence of the three defence witnesses to submit that the accused was

suffering from Chronic Schizophrenia and therefore indulged in the acts

which resulted in the death of the deceased without realizing the

consequences of his such acts. It was the submission of the Learned

Counsel that the ailment of Schizophrenia has potential to erupt when

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the circumstances are such which are not conducive to the person

suffering from the said ailment. The Learned Counsel would submit that

in the instant case, on account of the remarks made by the said Shital

Patil, which were personal in nature, the accused behaved in a violent

manner, which patients suffering from Schizophrenia are prone to do. It

was therefore the submission of the Learned Counsel that leniency is

required to be shown to the accused on the said ground and therefore his

conviction under Section 302 of the IPC would have to be set aside.

18 Per contra, the Learned APP Mrs. P. P. Shinde would support

the conviction of the accused under Section 302 of the IPC. It was the

submission of the Learned Counsel that the instant case is a case, where

there are four eye witnesses to the said incident and whose testimony has

stood the test of cross-examination.

19 It was the submission of the Learned APP that the

involvement of the accused, death having been caused on account of the

injury suffered by the deceased on account of the assault by the accused,

in the teeth of the evidence on record cannot be disputed. The Learned

APP would further submit that the Trial Court i.e. the Learned Sessions

Judge has rightly rejected the case of the defence that the benefit of

Section 84 of the IPC should be extended to the accused on the ground

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that the accused was not in a proper frame of mind at the time of the said

incident.

20 Having heard the Learned Counsel for the Appellant and the

Learned APP, we have given our anxious consideration to their

contentions. In the instant case, as indicated above, the prosecution has

examined as many as 16 witnesses in support of its case. It is required to

be noted that the incident which took place on 06.05.2009 was witnessed

by four witnesses. Their testimonies can be said to be consistent and

corroborating which establish the fact that the death of the deceased

Shital Patil was a homicidal one. Apart from the evidence of the said four

eye witnesses, the evidence of the witness to the Inquest Panchanama i.e.

PW-1, the evidence of the autopsy doctor who has given evidence of the

injuries on the person of the deceased which prove that the death of the

deceased was homicidal. Then there is evidence of PW-6, in whose

presence the personal search of the accused Santosh Koge was taken. The

said evidence goes to show that there is injury even to the accused which

he had sustained while indulging in the act of assaulting the deceased

which has resulted in his homicidal death. The involvement of the

accused is also proved by the evidence of PW-9 who is the Panch witness

to the recovery of the blood stained shirt of none other than the accused

who after the incident went back to his house and hanged the shirt in the

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almira and the same was shown to the Police by the accused himself

which was then seized by the Police. Then there is evidence of PW-10,

who was a witness to the Spot Panchanama who has given elaborate

account of the Panchanama drawn in his presence, the real state of affairs

which existed at the time of the incident are reflected in the panchanama

which throws light on the incident. It is required to be noted that in the

instant case, the first informant is the brother of the deceased who has

lodged the complaint immediately after the incident had occurred, then

as indicated herein above, there is the version of the eye witnesses i.e.

PW-2, PW-3, PW-5 and PW-7 who were very much present on the spot.

They have deposed about seeing the accused, make the deceased fall on

the road, hold his face and head and further claim seeing the accused

bang the head of the deceased on the tar road and jumping on his chest

and stomach. The said witnesses are the residents of the vicinity who

were at the door or on the spot and who tried to separate the accused

from the deceased. Their evidence could not be shaken in the cross-

examination. Hence, there is direct evidence as well as medical evidence

in respect of the homicidal death caused by the accused Santosh Koge of

the deceased Shital Patil.

21 The said witnesses being persons from the locality, their

presence at the spot of the incident becomes natural. It is also required to

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be noted that the time being the day time and there being marriage in the

vicinity, the presence of the people at the spot also cannot be ruled out.

22 In so far as the issue of unsoundness of mind of the accused

at the time of the incident is concerned, it is required to be noted that in

order to attract Section 84 of the IPC, it is for the defence to prove that

the accused was incapacitated to realize the consequences of his acts due

to the unsoundness of his mind and such unsoundness existed when the

actual act was done. In the said context, the evidence of the defence

witnesses is required to be evaluated. In so far as the DW-1 - Dr.

Parshwanath Monappa Chougule, who has treated the accused long back.

The said witness is a Psychiatrist and claims to have acquired expertise

and knowledge in Psychiatry. Though the said witness stated that the

accused is not a patient of Schizophrenia, his evidence goes to show that

the accused was reported to be disorganized complaining of sleeplessness

and had become aggressive.

23 In so far as the evidence of DW-2 is concerned, his evidence

is not of much use in so far as the theory of the unsoundness of mind of

the accused is concerned, as he is neither a qualified Psychiatrist nor

treated the accused for such ailment. The next witness is DW-3, in whose

evidence she has stated that she has treated the accused in her hospital. It

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has come in her evidence that she is practicing as Psychiatrist for last one

year and that she had occasion to treat the accused upto the year 2007

and not thereafter. She has further stated that the accused had Chronic

Schizophrenia when he was under her treatment way back in the year

2005 and 2007. The Trial Court has rejected the theory of unsoundness

of mind of the accused on the ground that there was no incident of

abnormality immediately prior to the incident or at the time of the

incident except that of aggressiveness or irritability. The Trial Court has

also rejected the case that the accused was suffering from Schizophrenia

by adverting to the various types of Schizophrenia that the person may

suffer. The Trial Court observed that in the instant case, it was not

brought on record by the defence as to which of the types of

Schizophrenia the accused was suffering from. The Trial Court also did

not accept the case of the defence on the ground that the accused was

very well aware of the consequences of his acts which can be seen from

the fact that the Police went to arrest him he is heard to have said that he

had just now finished one person and would do the same again. The Trial

Court also did not accept the case of the defence on the basis of the

conduct of the accused at the time of recording of his statement under

Section 313 of the Cr.P.C., at which time, according to the Trial Court the

accused had answered the questions comfortably by understanding the

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same. The Trial Court has observed that to the queries raised by it, the

accused had answered properly after understanding the same. The Trial

Court also took into consideration the fact that at the time of explaining

the charge it had occasion to interact with the accused and that the Trial

Court did not find any abnormality of the mental state of the accused.

The Trial Court also took into consideration the circumstance of the

accused appearing for the Union Public Service Commission Examination

in the year 2008 as also having acquired the NCC certificate. The Trial

Court observed that in view of the evidence, it would be unsafe to

presume that the accused was reported to have some mental abnormality

way back in the year 1999 and 2005 and was also in the same state of

mind on 06.05.2009.

24 In so far as the aspect of provocation to the accused Santosh

Koge is concerned, it is required to be noted that three witnesses i.e. PW-

3, PW-4 and PW-5 have in their evidence stated that Shital Patil i.e.

deceased on seeing the accused on the fateful day addressed him in the

following manner :-

"Kay Chotu, since your marriage is not taking place, you wear a Saree and spend your days." (English translation)

Though the aforesaid statement was not appearing in the statement of

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the said witnesses as recorded by the Police, in view of the fact that all

the three witnesses deposed to the same effect, it would have to be said

that there is no inconsistency in the said statement of the witnesses

though not appearing in the statements recorded by the Police. Hence,

the manner in which the deceased Shital Patil addressed the accused,

whereby he asked the deceased to wear a Saree snapped a cord in the

accused who had a history of suffering from Schizophrenia. In our view

therefore the manner in which the deceased Shital Patil addressed the

accused Santosh Koge was a provocation for the accused Santosh Koge to

act in the manner he did on the said fateful day. Nothing has come on

record that there was any previous enmity between the accused and the

deceased or that the accused was just waiting for an opportunity to get

even with the deceased. The act of the accused of slapping Shital Patil

and on his falling down banging his head on the tar road and thereafter

jumping on his body cannot be said to be a premeditated act and it is

only on account of the provocation that made the accused to act in the

manner he did on the said fateful day. Hence, the instant case can be said

to be a case where on account of the statement made by Shital Patil on

seeing the accused that the accused who had a history of suffering from

Schizophrenia was deprived of self control and acted in the manner he

did.

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25                In   so   far   as   the   judgments   of   the   Apex   Court   in  Sukhlal  

Sarkar's case (supra) and B. D. Khunte's case (supra) are concerned, the

said judgments are an exposition of the Apex Court on what is meant by

"grave and sudden provocation" so as to fulfill the requirements of

Section 300 Exception I of the IPC so as to convert the conviction from

one under Section 302 to Section 304 part I of the IPC.

In Sukhlal Sarkar's case (supra), the Appellant/original

accused was working in the Border Security Force. He was charged with

the murder of his colleague one Sanjay Kumar Dubey. The deceased

Sanjay Kumar Dubey was trying to wake up the accused so as to do

patrolling duty. The deceased it seems had slapped and pushed the

accused upon which the accused had fired from his rifle resulting in the

death of the said Sanjay Kumar Dubey. The accused was convicted of the

offences punishable under Sections 302 and 307 of the IPC. On the said

conviction being challenged, a Learned Single Judge of the Gauhati High

Court converted the conviction from Section 302 to Section 304 part I of

the IPC. The said judgment of the Learned Single Judge was challenged

before a Division Bench of the High Court. The Division Bench set aside

the judgment of the Learned Single Judge and confirmed the initial

conviction under Sections 302 and 307 of the IPC. On Appeal to the Apex

Court, the Apex Court confirmed the judgment of the Division Bench by

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holding that the action of the deceased could not be characterised as

grave and sudden so as to provoke the Appellant to fire at the deceased

killing him on the spot. The relevant paragraphs of the judgment are

paragraphs 9 to 11 which are reproduced herein under :-

"9. The meaning of the expressions "grave" and "sudden"

provocation has come up for consideration before this Court in several cases and it is unnecessary to refer to the judgments in those cases. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the appellant. "Sudden" means an action which must be quick and unexpected so far as to provoke the appellant. The question whether provocation was grave and sudden is a question of fact and not one of law. Each case is to be considered according to its own facts.

10. Under Exception 1 of Section 300, provocation must be grave and sudden and must have by gravity and suddenness deprived the appellant of the power of self-control, and not merely to set up provocation as a defence. It is not enough to show that the appellant was provoked into losing his control, it must be shown that the provocation was such as would in the circumstances have caused the reasonable man to lose his self-control. A person who claims the benefit of provocation has to show that the provocation was grave and sudden that he was deprived of power of self-control and that he caused the death of a person while he was still in that state of mind.

11. We have critically gone through the evidence of PW 1, the eyewitnesses, and we are of the considered view that the deceased had not provoked the appellant in inviting him to fire from his rifle so as to kill him. The deceased, it may be noted was unarmed. PW 1 was only trying to wake up the appellant so as to do

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patrolling duty. Assuming that the deceased had slapped and pushed the appellant, such an action of the deceased could not be characterised as grave and sudden, so as to provoke the appellant to fire at the deceased killing him at the spot."

In B. D. Khunte's case (supra), the facts were that the

deceased Army Subedar had tried to sodomise the accused Army Jawan

in a storeroom at Noon. On the Appellant's/accused denial, he was

beaten up by deceased. The Appellant had shot the deceased dead after

seven hours of the incident whilst being on picket guard duty at night,

when he saw deceased approaching him on account of which he was

gravely and suddenly provoked. There was no evidence nor was the

Appellant's case that the deceased had actually sodomised him. Evidence

only proved that after the said incident, Appellant was seen crying and

depressed and when asked by his colleagues he narrated his tale of

humiliation at the hands of the deceased. There was no evidence to prove

that after the incident the Appellant had continued to suffer a prolonged

spell of grave provocation. The Apex Court held that by its very nature

such provocation even when sudden and grave, cools off with passage of

time often lapsing into a motive for taking revenge whenever an

opportunity arises which was the case. The Apex Court in the facts of the

said case wherein accused/Appellant had settled for a lesser act of

retaliation like beating up of the deceased in the evening with his

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colleagues as also the accused having performed his natural duties during

day time and evening, held that any such memory of a past event does

not qualify as a grave and sudden provocation for mitigating the offence.

And therefore upheld the conviction. The Apex Court laid down the

ingredients for the exception I to Section 300 being satisfied in paragraph

12 which is reproduced hereunder :-

"12. What is critical for a case to fall under Exception 1 to Section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder :

(1) The deceased must have given provocation to the accused.

(2) The provocation so given must have been grave.

(3) The provocation given by the deceased must have been sudden.

(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self-control; and

(5) The offender must have killed the deceased or an other person by mistake or accident during the continuance of the deprivation of the power of self-control."

26 Having regard to the tests laid down by the Apex Court in

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the judgments (supra), the Appellant can draw support from the said

judgments for conversion of his conviction under Section 302 to one

falling under Section 304 part II of the IPC.

27 In so far as the medical evidence is concerned, the same is as

regards whether the accused was of unsound mind at the time of

commission of the said offence so as to attract Section 84 of the IPC. In

our view, having regard to the evidence of DW-1 to DW-3, it cannot be

said that at the time of the incident, the accused was suffering from any

mental disability. However, the fact remains that the accused had a

history of suffering from Schizophrenia for which he was treated by DW-1

and DW-3 during the years mentioned in their deposition. Hence, there

can be no escape from the fact that the accused was suffering from

Schizophrenia in the past. Having regard to the totality of the

circumstances, in our view, the instant case is covered by Section 304 part

II of the IPC and therefore the conviction of the accused under Section

302 would have to be set aside. Hence, the following order :-

O R D E R

(i) The Appeal is partly allowed.

(ii) The Judgment and order dated 19.11.2010 passed by

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the learned Sessions Judge-4, Kolhapur convicting the

accused under Section 302 of the IPC is quashed and

set aside.

(iii) The Appellant is convicted for the offence punishable

under Section 304 part II of the IPC and is sentenced

to the period already undergone.

(iv) The fine amount of Rs.5,000/- imposed by the learned

Sessions Judge is modified to Rs.1,000/-, in default

ten days' simple imprisonment.

(v) The Appellant-accused be released forthwith, if not

required in any other offence.

The Appeal stands disposed of accordingly.

[SMT. SADHANA S. JADHAV, J]                                            [R.M.SAVANT, J]




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