Bombay High Court
Sunilkumar Adiklal Mandal vs The State Of Maharashtra on 7 October, 2024
Author: R.G.Avachat
Bench: R.G.Avachat
2024:BHC-AUG:25005-DB
Cri Appeal Nos.132.22 and 508.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.508 OF 2016
Suhanabee w/o. Sk. Sattar,
Age : 40 years, Occ. Household,
r/o. Kahala (Kd)
Tq. Naigaon, Dist. Nanded ..Appellant
Vs.
The State of Maharashtra ..Respondent
AND
CRIMINAL APPEAL NO.132 OF 2022
Sunilkumar s/o. Adiklal Mandal,
Age 27 years, Occ. Convict,
r/o. Kanvinda, Post Ramgad,
Tq. Pohyahar, Dist. Kamka,
Jharkhand ..Appellant
Vs.
State of Maharashtra,
Through P.S.O. Kuntur,
Biloli, Dist. Nanded ..Respondent
----
Mr.G.P.Shinde, Advocate for appellant in Cri. Appeal No.508 of 2016
Mr.R.A.Jaiswal, Advocate for appellant in Cri. Appeal No.132 of 2022
Mr.S.D.Ghayal, Addl. Public Prosecutor for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : OCTOBER 01, 2024
PRONOUNCED ON : OCTOBER 07, 2024
2 Cri Appeal Nos.132.22 and 508.16
JUDGMENT (Per R.G.Avachat, J.) :
-
The challenge in both these appeals is to the judgment
and order of conviction and consequential sentence passed on
12.07.2016, by learned Addl. Sessions Judge, Biloli, in Special Case
No.54 of 2014. Vide the impugned order, the appellant in Criminal
Appeal No.132 of 2022 - Sunilkumar s/o. Adiklal Mandal has been
convicted for the offence punishable under Section 302 r/w. 34 of
Indian Penal Code and therefore, sentenced to suffer rigorous
imprisonment for life; while, the appellant in Criminal Appeal No.508
of 2016 has been convicted for the offence punishable under Section
201 of Indian Penal Code and sentenced to suffer R.I. for three years.
2. The facts, giving rise to the present appeals, are as
under:-
Sk. Riyaz (deceased) was son of appellant - Suhanabee.
It is the case of prosecution that appellant - Suhanabee did have
extra-marital relationship with appellant - Sunilkumar. On the given
day, i.e. on 27.05.2014 by 6.00 p.m., both the appellants along with
Rubina (PW 5), daughter of appellant - Suhanabee, were working in
the field. Sk. Riyaz (deceased) came there. A petty quarrel ensued
between the two since Riyaz questioned him how come he (appellant
- Sunilkumar) entered his field. The appellant - Sunilkumar,
thereupon, picked up a spade and inflicted number of blows on the
head of Riyaz. Riyaz succumbed thereto.
3. Appellant - Suhanabee informed everyone that her son
died on account of fall from a bicycle. She even went to the police
station and made a report accordingly. When there was an eye-
witness account and the post mortem examination indicated Riyaz
met with homicidal death, appellant - Suhanabee gave false
information about the said offence, which she knew to be false, with
intention to screen the offender (appellant Sunilkumar) from legal
punishment.
4. PW 1 - Sk. Ismail lodged First Information Report (Exh.15)
based on which, crime C.R. No.23 of 2014 was registered. The
appellants were arrested. The investigation of the crime was made.
On completion thereof, charge sheet was filed against both the
appellants. The trial Court framed Charge (Exh.4). The prosecution
to establish the guilt, examined seventeen witnesses and produced
in evidence certain documents. On appreciation of the same, the
trial court passed the order impugned herein.
5. Heard learned counsel for the parties. Learned counsel
for the appellant - Sunilkumar would submit that the case is based
on the evidence of an eye-witness namely, PW 5 - Rubina. She was
just 11 years of age at the relevant time. He took us through her
cross-examination to submit her to be unreliable. Learned counsel
then referred to an alleged confessional statement made by
appellant - Sunilkumar in the presence of panch witness. He took us
through the same and submitted that the deceased had abused the
appellant - Sunilkumar in such words, which caused grave and
sudden provocation, and as a result of which the appellant -
Sunilkumar assaulted the deceased. He also brought to our notice
that it was the deceased who had, first, assaulted appellant -
Sunilkumar with stone. The arrest panchnama of the appellant -
Sunilkumar was brought to our notice to indicate the injuries on his
person. According to learned counsel, appellant - Sunilkumar has
been behind the bars for little over 10 years. He would submit that it
would be, in any case, not an offence under Section 302 of Indian
Penal Code. He, ultimately, urged for allowing the appeal in toto or
at least, in the alternative, converting the offence under Section 302
to Section 304 of Indian Penal Code.
6. Learned counsel representing appellant - Suhanabee
would submit that the deceased was proceeding on a bicycle. There
was nothing at all to indicate the illicit relationship between the
appellants. The appellant - Suhanabee had, therefore, no reason to
make a false statement. He took us through the evidence of the
relevant witnesses, namely PW 13 - Raosaheb and PW 14 - Sudhakar
and submitted that PW 13 - Raosaheb did not tell PW 14 - Sudhakar
what the appellant - Suhanabee had stated to him. According to
him, what has been stated by PW 13 - Raosaheb in his evidence
about the deceased Riyaz to have suffered injuries due to fall from
bicycle, was not put to her in her cross-examination under Section
313 of the Code of Criminal Procedure. He referred to question
no.15. According to him, whatever PW 13 has testified against
appellant - Suhanabee, therefore, could not be read in evidence
against her. He further submitted that appellant - Suhanabee has
been leading happy married life with her husband.
7. Considered the submissions advanced. Perused the
evidence on record and the judgment impugned herein as well.
8. Let us advert to the evidence on record and appreciate
the same. PW 17 - Dr. Pushpak conducted autopsy on the mortal
remains of Sk. Riyaz. His evidence indicates him to have noticed the
following injuries on the person of Sk. Riyaz:-
1. Incised vertical wound over left forehead from inner side
of left eye brow to scalp 3x0.5x1 cm due to hard and sharp
object.
2. Lacerated incised wound on vertex with fracture of scull
about 3x1x1 cm due to hard and blunt object.
3. Lacerated wound on left side of scalp near temporal
region about 3x1x1 cm due to hard and sharp with fracture of
bone.
4. Lacerated wound behind left ear on left occipital bone
about 2x2x1 cm with fracture of bone.
5. Abrasion marks in mid-axillary line left side of chest 1x1
cm due to hard object.
In his opinion, Riyaz died of hemorrhagic shock due to multiple head
injuries. Although the viscera was preserved, nothing poisonous was
found. As such, the cause of death of Riyaz opined by PW 17 -
Pushpak has been duly proved. More so, he has categorically ruled
out that injury nos.1 and 2 on the person of Sk. Riyaz (deceased)
were possible due to fall from bicycle, on a stony surface.
9. PW 1 - Sk. Ismail is brother-in-law (brother of
Suhanabee's husband). It is he who lodged the F.I.R. (Exh.15).
Admittedly, he had not witnessed the incident. He was, however,
categorical to state that when he inquired with appellant -
Suhanabee as to how did Riyaz suffered injuries, she informed him
Riyaz fell off bicycle and suffered injuries thereby. During his cross-
examination, he was categorical to state to have hearsay information
as regards illicit relationship between the appellants.
10. PW 2 to PW 4 are witnesses as regards spot panchnama
(Exh.17), inquest panchnama (Exh.19) and the seizure panchnama of
clothes of the deceased (Exh.21). Since their evidence is of little
consequence to further the case of prosecution, we do not propose
to refer the same.
11. PW 5 - Rubina (daughter of appellant - Suhanabee) was
about 11 years of age at the relevant time. The trial court did not
find her to be not competent witness. It is in her evidence that about
four days excluding the day of the incident, she along with appellant
- Suhanabee (mother) and the appellant - Sunilkumar were engaged
in the work of making water-channel in their field. Her evidence
further suggests that on the given day, they went to the field by
12.00 noon and took lunch by 02.00 p.m. and again resumed the
work. She further testified that her brother - Riyaz came to the field.
It was 05.00 p.m. He (Riyaz) abused the appellant - Sunilkumar and
questioned him, as to why did he come to his field. The appellant
replied him to have come for the work. Riyaz, thereafter, proceeded
towards the field of his maternal uncle. The appellant took up a
spade and followed Riyaz. The appellant then assaulted on his
(Riyaz) head with spade near the field of one Bambaiwala. According
to her, one Shriniwas Sawkar and Raosaheb mama were present in
the field of Shriniwas Sawkar. She immediately approached them
and told about the incident. Raosaheb (PW 13) came to the spot.
Shriniwas Sawkar also came. Riyaz was taken in a tractor for being
taken to hospital. On way, one Pappu came with an auto-rickshaw.
Then, they shifted Riyaz from tractor to the auto-rickshaw and
brought him to the hospital. The Doctor examined him and advised
to shift to Hyderabad. Riyaz was, therefore, being taken to Nanded.
Unfortunately, he died on the way.
12. During the cross-examination of PW 5 - Rubina, it has
been brought on record that her statement was recorded two days
after the incident. It was also brought on record that her mother
(appellant - Suhanabee) used to be always in the company of either
Riyaz or herself. According to her, she had never seen the appellant
- Sunilkumar in her house. She further testified that he (Sunilkumar)
was friend of Riyaz. It was suggested to this witness that when her
brother was brought to the Chowk (square), their relatives had
gathered there. Same suggests the defence to have admitted her
presence from the field to the Chowk (square). What she has
admitted in cross-examination was that she did not share the
incident with anyone else who were present in the house. This does
not rule out her evidence about having informed Raosaheb. She
admitted that there was quarrel between her mother (appellant -
Suhanabee) and the deceased - Riyaz. To one of the questions, she
testified that Riyaz fell off bicycle in the Nalah (water-channel) in the
field of Bambaiwala. In our view, this is a stray admission having no
bearing on the fate of the appeal, more so, when she again denied
that when Riyaz was proceeding towards his house in anger, he fell
in the stream and sustain injuries. She denied to have had reached
at the crime scene after 20 minutes. PW 5 - Rubina is the only eye
witness to the incident. She was 11 years of age. For appreciation
of her evidence, we have no reason to discard her evidence, more
so, when the medical evidence rules out accidental death.
13. PW 7 - Uttam and PW 8 - Kamaji were witnesses to the
so called disclosure statement made by appellant - Sunilkumar
(Exh.29), pursuant to which a spade came to be recovered. The spot
panchnama indicates that the spade was lying at the spot as it is.
Admittedly, the seized spade was not sent to the F.S.L. to find,
whether there were stains of blood on it. The seizure of the spade,
therefore, has no relevancy. We have also closely perused the
evidence of PW 9 - Ramrao and PW 10 - Aminabee to find the same
to have no much relevance. Their evidence as regards illicit
relationship between the appellant was hearsay. PW 10 - Aminabee
is sister-in-law of the appellant - Suhanabee. She claimed to have
learnt about the incident from Rubina (PW 5). As such, her evidence
too is of little help for the prosecution. Same is the case about
PW 11 - Banubee. Her evidence indicates that she was a chicken-
vendor. According to her, acquaintance between both appellants
developed when they used to visit her shop. She, therefore, asked
both of them not to visit her shop. Thus, her evidence too is of little
consequence to bring home the charge. PW 12 - Dashrath was a
driver by profession. It is in his evidence that Riyaz was being taken
to Nanded in his vehicle. During transit, he inquired with the
appellant - Suhanabee as to how did Riyaz suffered injuries. She
told him Riyaz to have fallen off a bicycle and sustained injuries.
This witness was not cross-examined on behalf of appellant -
Suhanabee. As such, his evidence went unchallenged.
14. PW 13 - Raosaheb testified that he was in his field at the
material time. The daughter of Sattar, i.e. Rubina (PW 5), had come
to him running. She would call him `Mama'. She told him that
`Bihari' (appellant) beat her brother - Riyaz. He immediately rushed
towards the place of incident. On inquiry with Suhanabee (appellant),
she told him Riyaz to have fallen off bicycle and suffered injuries.
She even requested him not to beat up appellant - Sunilkumar. True,
whatever this witness has testified against the appellant -
Suhanabee, was not put to her during her examination under Section
313 of the Code of Criminal Procedure. Same, therefore, cannot be
used against her. So far as appellant - Sunilkumar is concerned, his
evidence reinforces the evidence of PW 5 - Rubina. Her (Rubina)
conduct immediately approaching him and narrating about the
incident is admissible as res gestae under Section 6 of the Evidence
Act.
15. It is in the evidence of PW 14 - Sudhakar that he had
been to the field of Shriniwas Sawkar. PW 13 - Raosaheb was
present there. Rubina (PW 5) came running and informed them about
the incident, i.e. the appellant assaulted her brother with spade. His
evidence further disclosed that both of them, therefore, went to the
spot. The appellant - Suhanabee was there. She told Raosaheb that
Riyaz suffered injuries due to fall off a bicycle. In question no.16 in
the examination under Section 313 of Cr.P.C., it was specifically put
to appellant - Suhanabee that she told Raosaheb (PW 13) in his
(Sudhakar) presence that Riyaz suffered injuries on account of falling
from bicycle.
16. PW 16 - Santosh was A.P.I., attached to Kuntur Police
Station. According to him, an information was received at the police
station that one boy died in suspicions circumstances, at village
Kahala. He, therefore, went to the village to make enquiry. He then
received a phone-call, informing appellant - Suhanabee to have
come to the police station to inform her son to have died due to his
falling off the bicycle. This evidence is hearsay. The police station
officer, who had recorded the information given by appellant -
Suhanabee, has not been examined nor a station-diary entry to that
effect has been placed on record. PW 13 - Raosaheb Kadam is the
witness in whose presence, the Investigating Officer recorded the
statement given by the appellant - Suhanabee.
17. We are conscious of the legal provision that in view of
Section 25 of the Evidence Act, no confession made to a police
officer shall be proved as against a person accused of any offence.
The Statement (Exh.26) made by the appellant - Sunilkumar in the
presence of PW 6, although in confessional nature, is not to be used
against him. We do not see any legal bar to use it in favour of the
appellant. The appellant, in his statement, stated as under:-
जब मै अय, रियाझ मुझे देखा तो मेरक
े ु गली दिया. तू मेरी मा का धगड
है क्या ? तू मेरी मा को चोद रहा है क्या ? तुम्हारी मा को चोदगं ू ा तो
कैसा लगेगा ? वैसे बाता कर रहा था| मै बोला के अरे तुम्हारी माँको
कौन चोद रहा है, ऐसे बाता कर रहा है| उसने पथर उठाया| मै भी दो
पथर उठाया| औ भी दो पथर उठाया औ फेक दिया तो मै भी फेक
दिया| ओ अपने माको गाली देने लगा तुमको घर आने नही दगं ू ा चलो
कैसे आती तुम घर को? फिर बोला कि मै अपने पिताजी को फोन कर
के बोल देता| मेरे को दार लगा ये ऐसी बाता कर रहा है | अगर उसको
घर से निकाल देता तो मेरक
े ु टेन्शन आ गया मै उसके आमी को बोला
मै समाजाता हू उसको जाके तो मै गया| मेरे हाता मे फावडा था| दरू से
मै चिलाया `रियाज तुम्हारी आमी बुलारही है' ऐसे बोला उसको वो
सायकल से जा रहा था | वो सायकल से उत्तर और पिछे मूडा मेरे को
देखा और बोला तू मेरस
े े क्यू बात कर रहा है ? उसने पथर उठाया और
उसने मेरक
े ो याह पे (बगलेच्या खाली हाताने इशारा करून दाखवले )
मारा| तो मेरे हात मे फावडा था मै भी फावडासे दो मारा उसको माथे पे
मारा तो वो बेहोष हो गया| मै पाणी लाने को गया और ट्रॅकटर को
बुलाया| .............................
Appellant - Sunilkumar:-
18. PW 5 - Rubina testified that her brother (deceased Riyaz)
abused appellant Sunilkumar. Abusing by deceased Riyaz, triggered
the incident. The arrest panchnama of the appellant - Sunilkumar
on record, would indicate him to have suffered blunt trauma on right
cheek, left sole and injury just below the right arm-pit. Same
reinforces that it was the deceased Riyaz, who abused the appellant
first, and even assaulted him and thereafter only, the appellant -
Sunilkumar assaulted on the head of deceased Riyaz by a spade,
which was readily available there as an agricultural instrument.
True, number of blows given on the deceased indicate that the
appellant had intended to do him away. Same suggests intention of
the appellant. However, his case would fall within the Exceptions 1
and 4 of Section 300 of Indian Penal Code. For ready reference, both
the Exceptions are reproduced below:-
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.
The above exception is subject to the following
provisos:--
First - That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing
harm to any person.
Secondly -- That the provocation is not given by anything
done in obedience to the law, or by a public servant in the
lawful exercise of the powers of such public servant.
Thirdly -- That the provocation is not given by anything
done in the lawful exercise of the right of private defence.
Exception 2. - .....
Exception 3.- .....
Exception 4.- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner.
Exception 5.- .....
19. In case of Dauvaram Nirmalkar Vs. State of
Chhattisgarh (2022 LiveLaw (SC) 650, the Apex Court
observed :-
"10. Interpreting Exception 1 to the Section
300 in K.M. Nanavati v. State of Maharashtra,
(1962 Supp (1) SCR 567, this Court has held that
the conditions which have to be satisfied for the
exception to be invoked are (a) the deceased
must have given provocation to the accused; (b)
the provocation must be grave; (c) the
provocation must be sudden; (d) the offender, by
the reason of the said provocation, should have
been deprived of his power of self-control; (e) the
offender should have killed the deceased during
the continuance of the deprivation of power of
self-control; and (f) the offender must have
caused the death of the person who gave the
provocation or the death of any other person by
mistake or accident. For determining whether or
not the provocation had temporarily deprived the
offender from the power of self-control, the test
to be applied is that of a reasonable man and not
that of an unusually excitable and pugnacious
individual. Further, it must be considered
whether there was sufficient interval and time to
allow the passion to cool. K.M. Nanavati (supra)
succinctly observes:
"84. Is there any standard of a reasonable
man for the application of the doctrine of
"grave and sudden" provocation? No
abstract standard of reasonableness can be
laid down. What a reasonable man will do
in certain circumstances depends upon the
customs, manners, way of life, traditional
values etc.; in short, the cultural, social
and emotional background of the society
to which an accused belongs. In our vast
country there are social groups ranging
from the lowest to the highest state of
civilization. It is neither possible nor
desirable to lay down any standard with
precision: it is for the court to decide in
each case, having regard to the relevant
circumstances. It is not necessary in this
case to ascertain whether a reasonable
man placed in the position of the accused
would have lost his self-control
momentarily or even temporarily when his
wife confessed to him of her illicit
intimacy with another, for we are satisfied
on the evidence that the accused regained
his self-control and killed Ahuja
deliberately.
85. The Indian law, relevant to the present
enquiry, may be stated thus: (1) The test
of "grave and sudden" provocation is
whether a reasonable man, belonging to
the same class of society as the accused,
placed in the situation in which the
accused was placed would be so provoked
as to lose his self-control. (2) In India,
words and gestures may also, under
certain circumstances, cause grave and
sudden provocation to an accused so as to
bring his act within the First Exception to
Section 300 of the Indian Penal Code. (3)
The mental background created by the
previous act of the victim may be taken
into consideration in ascertaining whether
the subsequent act caused grave and
sudden provocation for committing the
offence. (4) The fatal blow should be
clearly traced to the influence of passion
arising from that provocation and not
after the passion had cooled down by
lapse of time, or otherwise giving room
and scope for premeditation and
calculation."
11. K.M. Nanavati (supra), has held that the
mental background created by the previous act(s)
of the deceased may be taken into consideration
in ascertaining whether the subsequent act
caused sudden and grave provocation for
committing the offence. There can be sustained
and continuous provocations over a period of
time, albeit in such cases Exception 1 to Section
300 of the IPC applies when preceding the
offence, there was a last act, word or gesture in
the series of incidents comprising of that conduct,
amounting to sudden provocation sufficient for
reactive loss of self-control. K.M. Nanavati
(supra) quotes the definition of 'provocation'
given by Goddard, C.J.; in R. v. Duffy, (1949) 1
All E.R. 932, as :
"...some act or series of acts, done by the
dead man to the accused which would
cause in any reasonable person, and
actually causes in the accused, a sudden
and temporary loss of self-control,
rendering the accused so subject to
passion as to make him or her for the
moment not master of his own mind...
Indeed, circumstances which induce a
desire for revenge are inconsistent with
provocation, since the conscious
formulation of a desire for revenge means
that the person had the time to think, to
reflect, and that would negative a sudden
temporary loss of self-control which is of
the essence of provocation...".
12. The question of loss of self-control by
grave and sudden provocation is a question of
fact. Act of provocation and loss of self-control,
must be actual and reasonable. The law attaches
great importance to two things when defence of
provocation is taken under Exception 1 to Section
300 of the IPC. First, whether there was an
intervening period for the passion to cool and for
the accused to regain dominance and control over
his mind. Secondly, the mode of resentment
should bear some relationship to the sort of
provocation that has been given. The retaliation
should be proportionate to the provocation. (R
V.Duffy). The first part lays emphasis on whether
the accused acting as a reasonable man had time
to reflect and cool down. The offender is
presumed to possess the general power of self-
control of an ordinary or reasonable man,
belonging to the same class of society as the
accused, placed in the same situation in which
the accused is placed, to temporarily lose the
power of self-control. The second part emphasises
that the offender's reaction to the provocation is
to be judged on the basis of whether the
provocation was sufficient to bring about a loss of
self-control in the fact situation. Here again, the
court would have to apply the test of a reasonable
person in the circumstances. While examining
these questions, we should not be short-sighted,
and must take into account the whole of the
events, including the events on the day of the
fatality, as these are relevant for deciding whether
the accused was acting under the cumulative and
continuing stress of provocation. Gravity of
provocation turns upon the whole of the victim's
abusive behaviour towards the accused. Gravity
does not hinge upon a single or last act of
provocation deemed sufficient by itself to trigger
the punitive action. Last provocation has to be
considered in light of the previous provocative
acts or words, serious enough to cause the
accused to lose his self-control. The cumulative or
sustained provocation test would be satisfied
when the accused's retaliation was immediately
preceded and precipitated by some sort of
provocative conduct, which would satisfy the
requirement of sudden or immediate provocation.
13. Thus, the gravity of the provocation can be
assessed by taking into account the history of the abuse
and need not be confined to the gravity of the final
provocative act in the form of acts, words or gestures.
The final wrongdoing, triggering off the accused's
reaction, should be identified to show that there was
temporary loss of self-control and the accused had acted
without planning and premeditation. This has been aptly
summarised by Ashworth (1975 Criminal LR 558-559) in
the following words:
"The significance of the deceased's final act
should be considered by reference to the previous
relations between the parties, taking into account
any previous incidents which add colour to the
final act. This is not to argue that the basic
distinction between sudden provoked killings and
revenge killings should be blurred, for the lapse
of time between the deceased's final act and the
accused's retaliation should continue to tell
against him. The point is that the significance of
the deceased's final act and its effect upon the
accused - and indeed the relation of the
retaliation to that act - can be neither understood
nor evaluated without reference to previous
dealings between the parties." 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.
14. Following the view expressed in K.M. Nanavati
(supra), this Court in Budhi Singh v. State of Himachal
Pradesh (2012) 13 SCC 663, 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 (2012) 8 SCC 289.
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."
20. For all the above reasons, as regards the appellant -
Sunilkumar, we find it to be a case of culpable homicide not
amounting to murder, punishable under Section 304 Part II of Indian
Penal Code. The appellant - Sunilkumar was behind the bars from
the day one of his arrest, i.e. from 28.05.2014 till the day this Court
released him on P.R. Bond vide order dated 01.10.2024. As such, he
was behind the bars little over 10 years. In our view, he needs to be
released with the period of sentence he has already undergone.
Appellant - Suhanabee :-
21. As already observed above, the evidence on record
indicates that the appellant - Suhanabee, inspite of having been in
the know that her son - Riyaz to have been assaulted by the
appellant - Sunilkumar and he (Riyaz) thereby died, still, only with a
view to screen him from the legal punishment, she informed her son
to have suffered injuries due to fall from a bicycle. The trial court
has convicted her for the offence under Section 201 of Indian Penal
Code. For better appreciation, the provisions of Section 201 are
reproduced below:-
201. Causing disappearance of evidence of offence, or giving
false information to screen offender --
Whoever, knowing or having reason to believe that an offence
has been committed, causes any evidence of the commission of
that offence to disappear, with the intention of screening the
offender from legal punishment, or with that intention gives any
information respecting the offence which he knows or believes to
be false;
If a capital offence.--shall, if the offence which he knows or
believes to have been committed is punishable with death, be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine;
If punishable with imprisonment for life.--and if the offence is
punishable with imprisonment for life, or with imprisonment
which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine;
If punishable with less than ten years' imprisonment.--and if the
offence is punishable with imprisonment for any term not
extending to ten years, shall be punished with imprisonment of
the description provided for the offence, for a term which may
extend to one-fourth part of the longest term of the
imprisonment provided for the offence, or with fine, or with
both.
Reading of the first part of Section 201 of Indian Penal Code would
indicate that it is applicable in the case of an offence which is
exclusively punishable with death sentence. Same is, therefore, not
applicable here. We have converted the conviction of appellant -
Sunilkumar from offence punishable under Section 302 of I.P.C. into
the offence punishable under Section 304 Part I of I.P.C., which
prescribes punishment with life imprisonment or imprisonment of
either description for a term, which may extend to 10 years and shall
also be liable to fine. The second part of Section 201 of Indian Penal
Code provides maximum punishment of imprisonment for a term,
which may extend to three years and shall also be liable to fine.
Considering the fact that the appellant - Suhanabee is a woman and
was behind the bars for 137 days during investigation, enquiry and
trial, we propose to impose sentence against her to the period of
imprisonment, which she has already undergone; more so, when she
is leading happy married life and sending her back to jail may create
trouble in her matrimonial life.
22. With the aforesaid observations, both the appeals are
partly allowed in terms of the following order:-
(i) The impugned order dated 12.07.2016, passed by
learned Addl. Sessions Judge, Biloli, in Special Case No.54 of 2014,
convicting and sentencing the appellant in Criminal Appeal
No.132 of 2022 - Sunilkumar s/o. Adiklal Mandal for the offence
punishable under Section 302 r/w. 34 of Indian Penal Code, is set
aside. The appellant is acquitted thereof.
Instead, he is convicted for the offence punishable under
Section 304, Part I of Indian Penal Code and sentenced to suffer R.I.
for 10 years and to pay fine of Rs.1,000/-.
(ii) Appellant - Sunilkumar has already been released on his
executing P.R. Bond, vide order of this Court dated 01.10.2024. The
P.R. Bond executed by him shall stand cancelled.
(iii) The conviction of the appellant in Criminal Appeal
No.508 of 2016 - Suhanabee w/o. Sk. Sattar, vide impugned
order dated 12.07.2016, passed by learned Addl. Sessions Judge,
Biloli, in Special Case No.54 of 2014, for the offence punishable
under Section 201 r/w. 34 of Indian Penal Code, is maintained.
However, the sentence of imprisonment imposed against her is
hereby modified to the extent of the period of 137 days, which she
has already undergone.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
