Karnataka High Court
Babu S/O Mutteppa Akale vs The State Of Karnataka on 19 December, 2023
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CRL.A No. 100365 of 2022
C/W CRL.RC No. 100001 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19 TH
DAY OF DECEMBER, 2023
R
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100365 OF 2022
C/W
CRIMINAL REFERRED CASE NO. 100001 OF 2022
In Crl.A.No.100365/2022
Between:
1. Babu
S/o. Mutteppa Akale
Age: 32 years, Occ: Agriculture
R/o. Mamadapur, K.K Village,
Tq: Chikkodi, Dist: Belagavi-591305.
2. Nagappa
S/o. Mutteppa Akale
Digitally signed Age: 29 years, Occ: Agriculture
by C K LATHA
R/o. Mamadapur, K.K Village,
Location: HIGH Tq: Chikkodi, Dist: Belagavi-591305.
COURT OF
KARNATAKA
3. Mutteppa
S/o. Bhimappa Akale
Age: 28 years, Occ: Agriculture
R/o. Mamadapur, K.K Village,
Tq: Chikkodi, Dist: Belagavi-591305.
...Appellants
(By Sri Yug Mohith Chaudhry, Advocate a/w
Smt. Payoshi Roy, Sri. Siddhartha,
Smt. Ragini Ahuja for Sri.Girish M. Patil, Advocates)
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CRL.A No. 100365 of 2022
C/W CRL.RC No. 100001 of 2022
And:
The State of Karnataka
Through Chikkodi Police Station
Represented by State Public Prosecutor
High Court of Karnataka Dharwad Bench
Dharwad - 580011.
...Respondent
(By Sri M.B.Gundwade, Addl. SPP)
This Criminal Appeal is filed u/s 374(2) of Cr.P.C. praying
to set aside the judgment and order of conviction dated
14.06.2022 and order of sentence dated 15.06.2022 passed by
the VII Additional Sessions Judge, Belagavi sitting at Chikkodi
bearing S.C.No.114/2014 for the offences punishable u/s 302,
307, 506 r/w 34 of IPC and acquit the appellants/accused No.1
to 3.
In Crl.RC. No. 100001/2022
Between:
The State of Karnataka
By State Public Prosecutor,
High Court of Karnataka,
Dharwad,
R/by Circle Inspector of Police,
Chikkodi Circle, Chikkodi.
...Appellant
(By Sri. M.B.Gundwade, Addl. SPP)
And:
1. Babu
S/o. Mutteppa Akale
Age: 24 years, Occ: Agriculture
R/o. Mamadapur, K.K Village,
Tq: Chikkodi,
Dist: Belagavi-591305.
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CRL.A No. 100365 of 2022
C/W CRL.RC No. 100001 of 2022
2. Nagappa
S/o. Mutteppa Akale
Age: 21 years, Occ: Agriculture
R/o. Mamadapur, K.K Village,
Tq: Chikkodi, Dist: Belagavi-591305.
3. Mutteppa
S/o. Bhimappa Akale
Age: 20 years, Occ: Agriculture
R/o. Mamadapur, K.K Village,
Tq: Chikkodi, Dist: Belagavi-591305.
...Respondents
(By Sri. Yug Mohith Chaudhry, Advocate a/w
Smt. Payoshi Roy, Sri. Siddhartha,
Smt. Ragini Ahuja for Sri.Girish M. Patil, Advocates)
This Criminal Referred Case is registered as required
under section 366 of Cr.P.C. for confirmation of death sentence
awarded to accused 1) Babu S/o. Mutteppa Akale, Age 24
years, Occ. Agriculture, R/o. Mamadapur K.K. Village, Tq.
Chikodi, Dist. Belagavi. 2) Nagappa S/o. Mutteppa Akale, Age
21 years, Occ. Agriculture, R/o. Mamadapur K.K. Village, Tq.
Chikodi, Dist. Belagavi. 3) Mutteppa S/o. Bhimappa Akale, Age
20 years, Occ. Agriculture, R/o. Mamadapur K.K. Village, Tq.
Chikodi, Dist. Belagavi, by the VII Additional District and
Sessions Court, Belagavi, sitting at Chikkodi, vide judgment of
conviction dated 14.06.2022 and sentence to death dated
15.06.2022 in S.C. No.114/2014.
These Criminal Appeal and Criminal Referred Case
pertaining to Dharwad Bench, having been heard and reserved
on 25.11.2023, and coming on for pronouncement through
video conferencing this day, Sreenivas Harish Kumar J.,
sitting at Principal Bench, Bengaluru, pronounced the following:
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CRL.A No. 100365 of 2022
C/W CRL.RC No. 100001 of 2022
JUDGMENT
Reference under Section 366 of Code of Criminal
Procedure is made to this court consequent to imposition
of death sentence on accused nos.1 to 3 for the offence
punishable under Section 302 of Indian Penal Code.
Accused nos.1 to 3 (for short 'the accused') have also filed
an appeal challenging their conviction.
2. The prosecution case relates to an incident
dated 22.10.2013 of killing two persons, a male by name
Basavaraj and a female by name Sangeeta as they were
found to be having illicit relationship. Accused no.1 is the
husband of Sangeeta. Accused no.2 is the brother and
accused nos.3 and 4 are the cousins of the first accused.
The 4th accused was a juvenile and he was tried
separately. The incident, as projected by the prosecution,
occurred like this:
3. All the four accused gathered in front of the
house of Basavaraj around 10.30 p.m. on 22.10.2013, and
shouted at Basavaraj loudly asking him to come out of his
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house. As he came out, they dragged him and tied to a Jali
tree situated in a nearby agricultural land. Thereafter
Sangeeta was dragged to the same place from her house
and tied to the same tree by accused nos.1 and 2. As loud
voice of calling out Basavaraj attracted the attention of
neighbours, many people gathered. When PW2 and some
others interfered to question the accused about what they
were doing, second accused showed a mobile phone and
asked them to listen to a conversation recorded therein
and said that they should watch as to how Basavaraj and
Sangeeta would be slain. By that time accused no.1
brought three sickles from his house, gave one sickle to
accused no.2, the other to accused no.3 and held one with
him. They hacked Basavaraj and Sangeeta with the
sickles inflicting injuries all over their bodies. When PW2
somehow showed courage and rushed to their rescue, all
the accused brandished the sickles at them and threatened
to kill all those who would interfere. PW2 sustained an
injury to his left hand while avoiding a blow on him.
Basavaraj and Sangeeta met instantaneous death.
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4. This incident was reported to police by PW2 at
8'o clock on 23.10.2013. Ex.P.2 is the report of incident
given by PW2 to the police. He narrated the incident and
also stated that the accused had used a charging battery
as a source of light at the time when they were committing
crime.
5. PWs.2, 10, 11, 12, 17, 18, 19 and 22 were the
eyewitnesses. PW17, 18 and 19 did not support the
prosecution during trial, only PWs. 2, 10, 11, 12 and 22
supported the prosecution establishing the incident of
killing Basavaraj and Sangeeta. Placing reliance on the
testimonies of these witnesses, the trial court recorded a
finding that the prosecution was able to prove its case
beyond reasonable doubt and finding the incident as the
rarest of rare, imposed death sentence on accused nos.1
to 3 besides imposing sentence for the offences under
sections 307 and 506 read with 34 IPC as the charge sheet
was also filed for those offences.
6. We heard the arguments of Sri Vishwanath S.
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Bichagatti, learned counsel for accused nos.1 to 3 and Sri
M.B. Gundwade, learned Additional State Public
Prosecutor. Arguments were over on 14.09.2023 and the
cases were reserved for judgment. But on 09.10.2023 we
passed an order calling for reports from the jail authority,
the probation officer and the psychiatrist in view of the
judgment of the Hon'ble Supreme Court in Manoj and
Others vs State of M.P1. We also directed the jail
authority to produce the prisoners i.e., accused 1 to 3
before the court on 12.10.2023. When they were
produced on 12.10.2023, they submitted an application
with a request to permit them to engage a senior counsel
for further arguments. To meet the ends of justice, we
permitted them and fixed the date of hearing on
04.11.2023. On that day, learned counsel, Sri Yug Mohith
Chaudhry appeared on behalf of accused 1 to 3, and
prayed for time to argue. We fixed the next date of
hearing on 25.11.2023. We heard the argument of Sri Yug
Mohith Chaudhry, who has also filed his synopsis of
(2023) 2 SCC 353
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argument. We also heard the reply of Sri M.B.Gundwade,
learned Additional State Public Prosecutor.
7. Sri. Yug Mohith Chaudhry argued about delay in
registration of FIR. His argument was this: PW2 claims to
be an eye witness to the incident that occurred in between
10.30 p.m. and 11.30 p.m. on 22.10.2013; he and other
eye witnesses went home immediately after the incident;
PW2 did not think it necessary to make a report of the
incident to the police immediately after the incident and he
would go to police station at 8 O'clock on the next day. No
witness has given any explanation for the delay. PW2 has
admitted that he had a mobile phone and the family of
deceased had four to five phones. They had motorcycles
also. PW10, an eye witness claims to have made a call to
his uncle, Ashok and contacted several persons in the
village. It is inexplicable as to why none of them did not
call the police or a doctor when they were calling other
persons. Referring to evidence given by PW12, he argued
that according to PW2, PW12 wrote the report, but PW12
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has given entirely a different version by stating that they
informed the police about the incident only after they came
to spot the next morning. He also argued that PW13, the
father of Sangeeta, was informed of the incident in the
midnight around 1 O'clock. When PW13 came to spot and
enquired how the offence had taken place, he was told
that they did not know of it, and therefore the evidence of
PW13 would undermine the version proffered by PW2 in
FIR. He then argued that in Ex.P2, the report made by
PW2, it is clearly written that they had discussion in the
house during that night, and it shows that FIR was as a
result of deliberation, and therefore what is written in
Ex.P2 is not the truth. In this regard he has referred to
some decided cases.
8. Sri Vishwanath Bichagatti argued that conviction
recorded by the trial court for the offences under section
307 and 506 IPC is wrong in as much as the accused did
not have any intention to kill PW2, what the evidence
discloses is that when he interfered, he sustained an
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injury; it does not disclose that the accused had an
intention to make an attempt on the life of PW2. The
accused might have threatened those who tried to
interfere, but it would not amount to causing intimidation
within the meaning of Section 506 of IPC and hence the
conviction of the accused for these two offences should be
set aside.
8.1. In regard to the offence under section 302 of
IPC, his argument was in this way: Though the testimonies
of the eye witnesses namely PWs.2, 10, 11, 12 and 22 is
believable in spite of hostile evidence given by PWs.17, 18
and 19, the prosecution case cannot be brought within the
purview of offence punishable under section 302 IPC. His
argument was that if the trial court had listened to the
conversation between the two deceased which was
recorded in a memory card marked as M.O.29, it was
possible for taking a different view in the sense that
punishment under part II of section 304 could have been
imposed. Elaborating, Sri Bichagatti submitted that it was
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a known fact that both the deceased had illicit relationship
and they continued their relationship in spite of advice by
the elders of both the families. As the relationship
continued, it was quite natural for accused no.1 being the
husband of Sangeeta to get enraged especially after
listening to the conversation recorded in M.O.29. Though it
is true that accused no.1 did not react immediately after
coming to know of the illicit relationship of his wife with
Basavaraj, the materials brought on record indicate that all
the accused found the illicit relation to be an infringement
of the reputation of their family and that frustration
persisted in them for a long time. The line of argument of
Sri Vishwanath Bichagatti was that though it was within
the knowledge of accused no.1 that his wife had
relationship with Basavaraj, he did not react immediately
and he expected reformation in his wife. The knowledge of
illicit relationship which he tolerated for many days
ultimately led to provocation. The evidence discloses all
these aspects and if the resultant act was killing, it was on
account of sustained provocation which could be brought
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within the scope of Exception no.1 to Section 300 of IPC.
In this view, he argued that the accused could only be
punished under part II of Section 304 of IPC and since
they have been in jail since 30.10.2013, the date of their
arrest, this period could be set off and they be released. In
support of his argument he placed reliance on many
decided cases to which we refer later on.
9. But Sri. Yug Mohith Chaudhry put forward his
argument some what differently. The unnatural conduct of
PW2, 10, 11, 12 and 22 at the time of occurrence and their
parroting the prosecution version are sufficient enough to
disbelieve their testimonies as eye witnesses. One of the
eye witnesses was mother of Basavaraj, the deceased, and
the others were his first cousins. When Basavaraj was
being dragged they did not protest and question the
accused why they were doing so. They also did not untie
Basavaraj from the tree when the accused went to bring
Sangeeta. When both the deceased were being assaulted,
they did not rush to their rescue. After the incident was
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over, none of them went near the tree to untie the
deceased and check whether they were still alive or not.
No efforts were made by them to take Basavaraj to
hospital immediately. The eye witnesses have not given
any explanation for not calling the police or going to police
station. The explanation given by the eye witnesses that
they did not attempt to rescue since they were threatened
does not stand up to scrutiny. All these notable features in
their evidence demonstrate their unnatural conduct not
expected of close relatives. All the witnesses have given
evidence in orchestrated chorus; their evidence appears
like parroted versions of events.
9.1. Referring to evidence of PW2 in particular, Sri.
Yug Mohith Chaudhry argued that the evidence of PW2 is
unbelievable for yet another reason that he has stated
about an attempt made by accused no.1 to kill him. The
medical evidence shows that PW2 suffered a simple
miniscule abrasion caused by a hard and blunt object. The
medical evidence completely improbabilises the evidence
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of eye witnesses and therefore explanation sought to be
offered by the eye witnesses about threat posed to them
by the accused is another falsehood. This unnatural
conduct of the witnesses makes it explicit that they are
interested witnesses, for only such witnesses have the
tendency to give false evidence. When independent eye
witnesses turn hostile, the evidence of related witnesses
requires corroboration. In the absence of corroboration,
their evidence cannot be believed. Thus argued Sri. Yug
Mohith Chaudhry.
9.2. Continuing the argument Sri. Yug Mohith
Chaudhry also focused on provocation sustained by the
accused on account of illicit relationship between the two
deceased to emphasize that this case is not fit for
recording conviction under section 302 IPC. His argument
was that spousal infidelity is the gravest kind of
provocation that law has recognized; it cuts to quick and
inflicts deep wounds. There is no recorded judgment that
has held that spousal infidelity is not a grave form of
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provocation. In this case, the accused and the family of
the deceased had been advising the deceased not to
continue their relationship. The deeply intimate and
familiar conversation between the two lovers would
certainly provoke the accused who are young men from a
rural and patriarchal society. The test of suddenness is
not merely a mechanical question of proximity of time or
the quantum of time intervening between provocation and
assault; the real and substantial question is whether there
was time and opportunity for the accused to cool down and
break free from provocation. Premeditated acts of murder
are normally accompanied either by an attempt to kill
secretly, or an attempt by the accused to shield
themselves and to conceal the offence. These elements
are missing in the present case, instead the evidence
discloses that, the accused did not go to the house of
Basavaraj with weapons, that they did not bring Sangeeta
with them to the house of Basavaraj. Each of the
deceased suffered over ten chopped wounds on different
parts of their bodies. The wounds were not inflicted to kill
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the deceased, but to vent anger. The large number of
injuries reflects the state of mind of the accused. It was
not a mind that had calculatedly decided to kill someone
but an enraged state of mind driven wild with pain and
anger, and completely deprived of self control. In the
charge sheet it is clearly mentioned that the accused
resorted to killing Basavaraj and Sangeeta enraged by
their illicit relationship. Since it is mentioned in the charge
itself that the act was consequent to enragement, the
accused cannot be punished for the offence under section
302 IPC, and if at all they have to be held guilty, they can
be convicted for the offence under section 304 IPC.
9.3. His another line of argument was that if for any
reason an offence under section 302 IPC can be said to
have been proved, there is no case for imposing capital
punishment. The trial court, he argued, has missed to
notice mitigating circumstances overwhelmed by the
brutality of the offence. There are critical mitigating
circumstances; the accused were in prime youth; they had
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no criminal antecedents; the crime was as a result of
extreme emotional disturbance; and provocation and
brutal manner of commission of crime by itself is not
enough to give death sentence. The accused have shown
inclination to reform themselves. Therefore there is also a
case of commutation of sentence to life imprisonment.
9.4. In regard to role attributed to accused no.2, he
argued that the FIR does not indicate his overt act, and
none of the witnesses states that he assaulted both the
deceased with a chopper. The statement of accused no.2
under section 313 Cr.P.C. is that he was not residing with
his parents, but he was living in his wife's house in a
different village and this is admitted by PW22. It is well
established in law that explanation given by the accused
need not be proved beyond reasonable doubt. As long as
the explanation given by the accused is probable, it should
be accepted as true. It is evident that accused no.2 might
have been roped in because of family feuds.
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9.5. The last point Sri. Yug Mohith Chaudhry argued
was that, totally three weapons were used by accused for
committing crime. But only two weapons were marked
during trial and they are MO8 and MO9. The prosecution
has no explanation for not producing the third one. That
apart, accused no.1 himself surrendered in the police
station the very next day, but the police did not seek his
custody with them and instead made an application for
transferring him to judicial custody. This was unheard of
in a murder case. Another aspect is that FIR indicated the
names of A2 to A4, but till 29.10.2013, the investigating
officer did not give instructions for their arrest. This only
shows that the investigating officer himself did not believe
the narrative given by PW2 in regard to role played by
accused nos.2 to 4. With these points Sri. Yug Mohith
Chaudhry concluded his argument.
10. Sri Gundwade, refuting the theory of sustained
provocation as projected by Sri Vishwanath Bichagatti and
Sri Yug Mohith Chaudhry, argued that in order to apply the
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first Exception to Section 300 IPC, the provocation must be
sudden and grave which renders a person lose his self
control and drives him to doing an act resulting in the
death of another. In the present case this kind of a
situation is not forthcoming. The relationship between both
the deceased was known to the accused for quite a long
time. The tenor of cross examination indicates that both
the deceased had been advised to discontinue their
relationship. They defied the advice of all. The
conversation which had been recorded in the memory card
inserted to the mobile phone did not trigger the accused
pounce on the deceased immediately after listening it for
the first time. The very fact that they asked the
eyewitnesses who rushed to the rescue of the deceased to
hear the recorded conversation indicated that the accused
had heard that conversation long back. There was left with
them sufficient time gap to think about next course of
action which they implemented on the night of
22.10.2013. Therefore the accused premeditated and then
put their plan into action. For this reason Exception 1 to
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Section 300 of IPC cannot be applied. In support of his
argument he referred to a paragraph from judgment of the
Supreme Court in the case of Dauvaram Nirmalkar Vs.
State of Chattisgarh2 which judgment was referred by
Sri Vishwanath Bichagatti and Sri Yug Mohith Chaudhry.
His argument was that the way both the accused were
killed shows the brutal and cruel attitude of the accused.
The act of killing demonstrated cruelty of the highest
degree and therefore any punishment less than death is no
punishment at all to a situation like this. He submitted that
the principles laid down by the Supreme Court in the cases
of Bachan Singh Vs State of Punjab 3 and Machhi
Singh and Others4 are very much applicable. Hence
death sentence is to be confirmed.
10.1. Adverting to the argument of Sri. Yug Mohith
Chaudhry, Sri.M.B.Gundawade replied that the eye
witnesses were not chance witnesses. Considering the
(2022 SCC Online 955)
AIR 1980 SC 898
(1983) 3 SCC 470
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time when the incident occurred, it was highly impossible
to expect a chance witness to be present at that time. The
witnesses were from the same village and neighbours of
the deceased and the accused. They might be related, but
their evidence does not disclose any exaggeration of
events; they have not made any attempt to falsely
implicate the accused. Their evidence is consistent which
cannot be characterized as parroting. The evidence in fact
discloses attempt made by all the witnesses to rescue the
deceased. Though the accused were four in number,
anybody would not dare beyond a limit to risk one's own
life. In fact injury sustained by PW2 shows his attempt to
interfere for the protection of the deceased. It is not as
though a sharp edged weapon does not cause an abrasion,
it depends on intensity and angle of blow. Therefore
looked from any angle the evidence of PW2, PW10, PW11,
PW12 and PW22 cannot be ignored.
11. From the above arguments, we need to answer
the following questions :
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(i) Was there delay in registration of FIR?
(ii) Has the trial court erred in relying on the
evidence of PWs2, 10, 11, 12 and 22?
(iii) Is the theory of sustained provocation
applicable to the facts of the present case to
scale down the offence from Section 302 to
Section 304 IPC?
(iv) Whether the finding of the trial court that this is
the rarest of the rare case correct and
consequently death punishment is to be
confirmed?
(v) Are accused rightly convicted for the offences
under sections 307 and 506 IPC?
12. Before answering point no. (i), we may briefly
refer to the contents of Ex.P2 lodged by PW2 with the
police on 23.10.2013. The accused suspected illicit
relationship between Basavaraj and Sangeeta and this had
given rise to enmity against Basavaraj and his family. At
about 10.30 p.m. on 22.10.2013, PW2 went to bed and at
that time he heard shouting voice in front of the house of
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Basavaraj which was situated near his house. The shouting
voices were that of accused nos.1 to 4 who asked
Basavaraj to come out of his house. Hearing the shouts,
PW2 and others from the neighbourhood came out and
heard all the accused scolding Basavaraj and dragging him
to some other place. PW2 and others followed the accused
and requested them to release Basavaraj. The accused
took Basavaraj to their agricultural field and tied Basavaraj
to a jali tree with a rope. Then accused nos.1 and 2
forcibly brought Sangeeta to the same place from the
house and tied her also to that tree. When PW2 and others
questioned them as to what they were doing, accused no.2
showed a mobile phone and asked them to listen to a
conversation between Basavaraj and Sangeeta, and by
that time the first accused brought from his house three
sickles used for cutting sugarcane. He gave one sickle to
accused no.2, another to accused no.3 and held one in his
hand. Showing the sickles to PW2 and others and saying
that since Basavaraj and Sangeeta were having illicit
relationship they should see how both of them would be
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hacked, the accused nos.1 to 3 started assaulting both
Basavaraj and Sangeeta with sickles indiscriminately and
when PW2 went forward to protect both of them, all the
accused brandished the sickles at them giving a threat that
if anybody would come forward, he would be killed.
Accused no.1 rushed to assault PW2 at that time and when
the latter tried to escape, he sustained injury on his left
hand. Therefore PW2 and others ran away from that place
in fright. It is stated in Ex.P.2 that the accused had
brought a charging battery for the purpose of obtaining
light during the time of attack on Basavaraj and Sangeeta.
Point No.(i)
13. On this point of argument, it may be stated
thus: It's true that PW2 was the first informant and Ex.P2
is the report in writing given by him to police for
registration of FIR. The scribe of Ex.P2 is Ravi M. Burj,
who adduced oral evidence as PW12. FIR was registered
at 8.00 a.m. on 23.10.2013.
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14. Registration of FIR at the earliest point of time
enhances credibility in it. Unexplained delay may lead to
suspicion in the contents of FIR. But delay always does
not matter and assume significance especially when a
ghastly crime takes place. If the first informant is an
injured or an eye witness and if his oral testimony is
trustworthy, even if there is delay by a few hours, it
cannot be given prominence. In this case, we may state
firstly that the aspect of delay appears to have not been
raised in the trial court; this point has been raised for the
first time before us. Be that as it may. It is true that PW2
has stated that there were mobile phones and motor
cycles. But his one answer in the cross examination
indicates a meaning that he was not using the motorcycle
at that relevant time. His clear answer is, "Now only I am
using motor cycle" (FUÀ ªÀiÁvÀæ ªÉÆÃmÁgï ¸ÉÊPÀ¯ï
G¥ÀAiÉÆÃV¸ÀÄwÛzÉÝãÉ). Although nothing prevented him from
lodging FIR that night itself or informing the police at least
over the phone, his not doing so cannot be considered to
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hold that Ex.P2 was outcome of deliberation and bereft of
truth. There is ample evidence which we are going to
discuss to show that he was an eye witness, and what is
written in Ex.P2 is what he had seen. If in Ex.P2, it is
written that they all returned home and consulted each
other before lodging the report of incident, it cannot be
understood in such a way as they held discussions to foist
a false case against the accused. The meaning of the
entire sentence is, being scared they all returned home,
consulted each other about the next course of action to be
taken and since it was late night, they went to the police
station in the morning. In Ex.P24, the FIR, the distance
between Mamadapur, the village where the incident
occurred and the police station is mentioned as 35 kms.
PW2 and PW12 might have reached the police station
before 8 O' clock, which indicates that they should have
left home at least at 7 O'clock in the morning to cover the
distance on the motor cycle. If they thought to stay back
home during dark, there is nothing unnatural in it. There
is explanation for this delay, if it is considered as delay.
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15. Then about PW10 contacting his uncle by name
Ashok and several others, it has to be stated that he was
not the first informant to the police, but he too
accompanied PW2 to the police station. He has clearly
stated in cross examination that totally four persons went
to police station in the morning on two motor cycles.
Certainly he too could have telephoned the police to inform
about the incident; if he did not, contents of Ex.P2 cannot
be disbelieved. He too was an eye witness.
16. It's true that PW12 has stated in examination-in-
chief that he told before the Circle Inspector of Police
about the incident when the latter visited his house. This
answer was pointed out by Sri. Yug Mohith Chaudhry to
argue that PW12 had not been to the police station and
therefore he was not the scribe which in turn leads to
disbelieving Ex.P2. Here we find a mistake committed by
the Public Prosecutor. It was the duty of the Public
Prosecutor to elicit from him whether he scribed Ex.P2 or
not, and draw his attention to his signature found on
- 28 -
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Ex.P2. Anyway this does not matter, in as much as what
PW12 has stated is that he revealed about the incident to
CPI, who was not the police officer before whom the FIR
was laid. PW24 was the sub-inspector of police who
received Ex.P2 from PW2. PW24 has stated that he went
to spot after registering FIR and untied the dead bodies
from the tree, and then conducted inquest. By that time
CPI came to spot, and then PW24 handed over
investigation to CPI who, as PW25 has also stated to have
taken over investigation from PW24. That means, PW12
might have once again revealed the entire incident to
PW25. It is there in the evidence of PW25 that he
recorded the statement of PW12(CW15). For this reason,
Ex.P2 cannot be said to be a manipulated version.
17. No inference as to falsity in Ex.P2 can be drawn
because PW13 has stated that nobody gave any
information to him when he came to spot. The actual
evidence of PW13 who is the father of Sangeeta in
examination-in-chief is that CW1, i.e., PW2 told him that
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the accused caused the death of his daughter suspecting
her illicit relationship. And in the cross examination he
stated that nobody told him as to how the incident
occurred when he came to the spot. This answer does not
mean that PW2 did not tell him about the incident; the
meaning of his answer in the cross examination is that no
villager, other than PW2, who might have come to the spot
at 9.30 a.m. when PW13 also went there, might have told
him like that. Those people probably, might not be eye
witnesses to the incident. Therefore all the circumstances
figured out by learned counsel to disbelieve FIR based on
Ex.P2 do not stand to reason. Now two decisions cited by
Sri. Yug Mohith Choudhry may be referred. In Ganesh
Bhavan Patel and Another Vs. State of Maharashtra,5
it was found that S.I. was found to be highly interested.
One circumstance indicated that FIR did not appear to
have been recorded before 3.00 a.m. on 30th November.
PSI tried to give an impression that FIR was registered at
8.30 p.m. on 29th November. But one Ravji testified that
(1978) 4 SCC 371
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his statement was recorded in the police station at 12
midnight or 1.00 a.m. after completion of panchanama of
the scene occurrence. Ravji also stated that he might
have signed his statement around 3.00 a.m. If the trial
court held that statement of Ravji might have been
recorded between 12 midnight and 1 a.m., the High Court
held that PSI might have recorded the statement around
8.30 p.m. on 29th November. Moreover the investigating
officer preferred recording statements of other witnesses
to the eye witnesses, which was found to be unnatural.
Ravji, probably was not an eye witness. In this backdrop
delay in registration of FIR was noticed to be prominent.
18. Rajeevan and Another Vs. State of Kerala6
involves the facts that the incident occurred around 7.00
p.m. on 28.12.1987. SI reached the place of occurrence
within half an hour and then returning to police station, he
made a brief note about the incident in the general diary of
the police station. PW1 lodged FIR on 29.12.1987 at 7.40
(2003) 3 SCC 355
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a.m., but FIR was sent to the court at 5.40 p.m. on
30.12.1987. Firstly, a doubt arose as to why the PSI did
not register FIR on the basis of information collected by
him, and more than that, in the counterfoil of the FIR,
between the entries relating to Crime nos.5 and 7, certain
blank sheets were found. The court found this
circumstance for false implication of appellants due to
political bitterness. Therefore FIR was not believed. Delay
in dispatch of FIR to the Magistrate was given prominence.
19. The case on hand does not indicate the existence
of the circumstances found in cited decisions. In our
opinion, there was no delay; even if there was delay, it has
been explained. Point no.(i) is answered in negative.
Point No. (ii)
20. We have perused the evidence of PW2, PW10,
PW11, PW12 and PW22. In the examination in chief PW2
has given a full account of the incident almost on lines with
his first report to the police i.e., Ex.P2. Since we have
already culled out the contents of Ex.P2, we do not think it
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necessary to narrate here what he has stated in
examination in chief. PW10, PW11, PW12 and PW22 have
spoken in tandem with PW2. None of these witnesses
appears to have been discredited in the cross examination.
The suggestions given to them in the cross examination
indicate that the illicit relationship between the two
deceased was a known fact to everybody in the village,
that they used to meet in the jawar fields, that they had
been advised to refrain from continuing the relationship,
but they did not stop meeting. In regard to the incident,
none of them has been discredited in the cross
examination. The testimonies of these witnesses is sought
to be impeached for two reasons that they are interested
being related to Basavaraj and their unnatural conduct in
not attempting to protect the deceased.
21. There is no rule that evidence of a related
witness must be discarded, the established principle is that
the oral testimony of a related witness must be subjected
to scrutiny with a greater circumspection. If the testimony
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appears to be untainted without any attempt to falsely
implicate a person, such kind of evidence can be definitely
acted upon. Sri. Yug Mohith Chaudhry has relied on two
judgments of the Hon'ble Supreme Court in State of
Orissa Vs. Brahmananda Nanda7 and Amar Singh Vs.
State (NCT of Delhi).8 In Brahmananda, the conduct
noticed was that PW6 who claimed to be an eye witness
did not disclose the name of assailant till morning of June
15, 1969 though the incident had taken place on June 13,
1969. The explanation given was PW6 was afraid of the
assailant. This explanation was disbelieved because the
assailant was not a gangster or a confirmed criminal to be
afraid of him and more than that the police arrived at the
scene very soon, and the ASI, who came to the village on
June 14 in connection with the case, was the nephew of
PW6.
22. In Amar Singh also, the facts are that the
prosecution projected PW1 and PW11 as eye witnesses.
(1976) 4 SCC 288
(2020) 19 SCC 165
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PW1 gave an explanation that all the three accused
threatened to kill him and PW11 when they attempted to
rescue the deceased. But PW11, who was treated hostile,
never stated about the efforts made by them to save the
deceased. The evidence of PW11 was that he could not
run because of an injury to his spine. He also denied in
the cross examination that he had given statement before
the police about identification of the culprits and their
overt acts. PW1 and PW11 were the brothers of the
deceased. After the incident also, PW1 and PW11 did not
take the injured to a doctor whose clinic was just near by
the place of incident. This was the unnatural conduct
noticed to doubt the presence of PW1 and PW11.
23. But in the case on hand, there is no scope for
disbelieving PW2, PW10, PW11, PW12 and PW22 to be eye
witnesses. The reasons are many. PW11 is the mother
and others are the cousins of Basavaraj. PW11 was inside
the house when Basavaraj was asked by the accused to
come out of the house. The houses of other witnesses are
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situate near by. All of them have stated that they heard
the shouting voices of the accused which made them come
near the house of Basavaraj. They all followed the
accused when they were dragging Basavaraj. It is not the
case of prosecution that the witnesses were not in their
respective houses, the suggestion given to PW13 is that
the accused did not drag Basavaraj, which she denied.
One answer elicited from PW12 in the cross examination
shows that four houses were there in the neighbourhood
and about 10 to 15 people were living in those houses.
(C°è 4 ªÀÄ£ÉUÀ¼ÀÄ EªÉ, CªÀÅUÀ¼À°è 10 jAzÀ 15 d£À ªÁ¸À EgÀÄvÉÛÃªÉ C£ÀÄߪÀÅzÀÄ ¤d).
This being the situation, the presence of the eye witnesses
cannot be doubted not only at the time when the accused
first went near the house of Basavaraj but also at the tree
where the actual incident of killing took place.
24. Three unnatural circumstances pointed out are
that the witnesses did not make any attempt to rescue the
deceased, that they did not untie the deceased and see
whether they were alive or not, and that they did not call
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the police. The evidence actually shows that an attempt
was made by all the witnesses to question the accused and
their rushing for the rescue of the deceased. PW2 has
stated that the accused threatened them by brandishing
the weapons they had with them. Although it may be
stated that the witnesses could have been more sentient
than what the evidence discloses how they conducted
themselves for rescuing the deceased, one thing should
not be forgotten. It is quite natural that one does not run
the risk to one's life, and thus seen, the attempt made by
the people who were present there could not be expected
to extend beyond the risk to their lives. The evidence
discloses that PW2 suffered an injury to his left hand when
he went forward to stop the accused. The other witnesses
have also spoken about injury sustained by PW2 at that
time. PW14 was the doctor who examined PW2 at 9 a.m
on 23.10.2013 and noticed the presence of an abrasion
type wound measuring 3x0.1cm on the left fore arm.
Ex.P15 is the wound certificate and the opinion of PW14 is
that the injury that he noticed was possible to occur due to
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assault by blunt and hard object. The weapons produced
are not hard and blunt objects. It is for this reason Sri.
Yug Mohith Chaudhry argued that the weapon said to have
been used for infliction of injury should have been shown
to the doctor to obtain his opinion. In the absence of
opinion of the doctor, prosecution case cannot be said to
have been established. He has placed reliance on the
judgment of the Supreme Court in the case of Amar
Singh Vs. State of Punjab 9.
25. The public prosecutor could have drawn the
attention of PW14 to any of the weapons produced and
marked during trial for his opinion. This was again a folly
of the public prosecutor; but by that itself no inference can
be drawn to state that the injury PW2 sustained was not
on account of infliction caused by one of the accused
persons. Though PW14 has stated that hard or blunt
object would cause such an injury, it can also be stated
that, if the tip of the weapon comes in contact with skin
1987 1 SCC 679
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without much force or intensity in the assault, there is
likelihood that injury like abrasion occurs. PW14 could
have been cross examined if the defence was so sure that
PW2 was not present at the time of incident and he
sustained an injury elsewhere. No such attempt was
made. In fact what PW2 has stated is that he sustained
injury on his left fore arm while escaping the blow which
situation would clearly establish occurrence of abrasion on
the forearm.
26. In Amar Singh and Others vs State of
Punjab medical evidence was found to be inconsistent
with versions of eyewitnesses about the injuries sustained
by the deceased. PW5-Smt. Veero, the mother was the
eyewitness. In the court, she gave a full account of how
her son was assaulted by the accused. She stated that
after her son fell down, all the accused assaulted with
weapons that each of them was holding. She stated
specifically that many blows fell on the ribs and abdomen
of the deceased, but the medical report did not indicate
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any injury on the ribs and abdomen. Another eyewitness
i.e., PW6 admitted in the cross-examination that he did not
see the deceased Piara Singh receiving any injury at the
hands of accused. But in this case, PW2 stated about
injury sustained by him while making an attempt to
protect the deceased. The doctor might have given a
different opinion about the type of weapon, but the
presence of PW2 at the time of incident cannot be doubted
in the wake of minor inconsistency that Sri Yug Mohith
Chaudhry pointed out.
27. About the deceased being not untied from the
tree and Basavaraj not taken to hospital, the witnesses
have stated that the deceased met death due to assault
with weapons by the accused. It is a common place that
nobody would go forward to touch the dead body
especially when the incident would be going to be a police
case. There is nothing unusual in it. An inference is
possible to be drawn this way.
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28. About not calling police immediately is already
discussed, there is no need to delve on it again. So what
we find is there was nothing unnatural in the conduct of
eye witnesses. In a criminal case, a conduct which
appears to be unnatural in one case may appear to be
natural in the other case, evidence cannot be appreciated
applying Eclyiod formula. Attending circumstances play a
vital role.
29. About the argument regarding parroting versions
of the eye witnesses, what we find is cogency and
consistency in their evidence. They have not given
orchestrated evidence; there are natural deviations, but
there is no distraction while narrating the incident.
Consistency in evidence cannot be termed as parroting. In
the decision of the Hon'ble Supreme Court in the case of
Rambilas and Others Vs. State of MP10, the witnesses
admitted in the cross examination that they did not see
the actual assault as they were prevented from going to
(1997) SCC (Criminal) 1222
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the place of occurrence by the appellants, but in the
examination in chief, they narrated the entire incident, and
even the omissions, contradictions and improvements were
found to be identical. Therefore the Hon'ble Supreme
Court held that the testimonies of those witnesses to be
like parrot telling and unbelievable. Such kind of evidence
is not found in this case.
30. Dharam Singh and Others Vs State of
Punjab11 is cited in the context that the verbatim
accounts given by eyewitnesses is not safe to be relied
upon. In this case, the facts show that there was enmity
between the deceased, namely Kaka Singh and the
accused. There was also enmity between PW22 and the
family of the accused because of civil disputes. In the
incident that occurred on December 2, 1978 Kaka Singh
was killed. PWs 18, 19 and 20 were projected as
eyewitnesses. Considering the nature of evidence given by
the witnesses, it was found that their testimonies were
1993 Supp (3) SCC 532
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unbelievable. What mattered most was a fracture
sustained by the deceased to his left leg. The doctor who
treated the deceased and the doctor who conducted post
mortem examination did not indicate in their respective
reports as to how the fracture occurred and all that they
indicated was that injuries 1 to 4 were caused by sharp
edged weapons. Very strangely in the FIR it was
mentioned that the leg of the deceased was twisted in
such a way as to cause fracture. In this circumstance it
was noticed that if the doctors did not speak about
possibility of occurrence of fracture, there was a mention
of it in the FIR. It was noticed that the FIR was the
outcome of due deliberation. Therefore the Hon'ble
Supreme Court set aside the judgment of the High Court
which had reversed the acquittal judgment of the trial
court. In the case on hand the circumstances similar to
the circumstances in Dharam Singh are not forthcoming.
Moreover what the Supreme Court has held in this case is
when there is enmity between the accused and the
witnesses, evidence has to be scrutinized with great care
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and caution. It is not the principle that if enmity exists,
the witnesses always give false evidence; there may be
tendency to give false evidence in order to falsely inculpate
the persons whom they hate and therefore the evidence
requires scrutiny with great care and caution. In the case
on hand, it is not found that the witnesses have given false
evidence.
31. Mohd. Hanif and Others Vs. State of
Maharashtra12 is the judgment of the High Court of
Bombay in which the oral evidence of the witnesses was
found to be not believable because of many reasons. The
High Court doubted that they were eye witnesses,
especially in the background of all of them giving puppet
like version about having seen the incident standing at
different places.
32. Sri. Yug Mohith Chaudhry has placed reliance on
a judgment of the Supreme Court in Golbar Hussain and
(2017) SCC Online BOM 412
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Others Vs. State of Assam and Another13, to garner
support for his argument that when independent eye
witnesses turn hostile, the evidence of other eye witnesses
who have supported cannot be believed without
corroboration. The observations found in paras 10 and 11
are :
"10. The second issue for consideration is the
testimonies of PWs4 and 5 in absence of any
corroboration from any independent witness.
PWs4 and 5 are related witnesses as they are
the brothers of the deceased Hasen Ali. There
is no bar on the admissibility of a statement by
related witnesses supporting the prosecution
case, but it should stand the test of being
credible, reliable, trustworthy, admissible in
accordance with law and corroborated by other
witnesses or documentary evidence of the
prosecution. This Court has held in Manga alias
Man Singh v. State of Uttarakhand, (2013) 7
SCC 629, that it is the quality of the witness
that matters and not the quantity, when the
related witness was examined and found
(2015) 11 SCC 242
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credible. In such a case non- examination of an
independent witness would not be fatal to the
prosecution case.
11. In the present case, however, the
prosecution witnesses PWs4 and 5, contradict
each other, and their statements are not
corroborated by any independent witness in
spite of the incident happening in the market
place, with shops on both sides of the road.
Therefore, in our view, as the testimonies of
PWs4 and 5 are not completely reliable, this is
a fit case where corroboration by an
independent witness was required. The case of
the prosecution also weakens on the ground
that the only independent witness PW-8 turned
hostile. A similar situation arose in Shyamal
Saha and Anr. v. State of West Bengal, (2014)
12 SCC 321, where the only independent
witness turned hostile. This Court decided to
affirm the acquittal and granted benefit of
doubt to the accused considering the factual
background and circumstances involved in the
case."
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33. In the above referred case, the Hon'ble Supreme
Court, having noticed material contradictions in the
testimonies of PW4 and PW5, opined that corroboration
was required. Same is not the situation in the case on
hand. It is true that PW17, PW18 and PW19, the
independent eye witnesses did not support. Either they
wanted to be neutral or they might be interested in
accused for deposing against prosecution. The way they
have answered in examination in chief itself is sufficient to
draw an inference that their evidence is far from truth.
They all belong to village Mamadapur where the incident
occurred. PW17 has stated that he knew the accused and
both the deceased. But he has stated he does not know
how they died. The evidence of PW18 is that he does not
know the accused and also the deceased, and does not
know how they died. PW19 has stated that he knows the
accused, but had not seen the deceased and does not
know anything about death. Mamadapur is a village, not a
big town. PW22 has stated that about 300 persons
witnessed the incident. When two persons were killed in
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their village, if PW17, PW18 and PW19 state that they do
not know anything about incident, it is hard to believe
truth in their version. Therefore looked from any angle,
PW2, PW10, PW12 and PW22 do not appear to be
untrustworthy witnesses, there was no unnaturality in their
conduct. Their evidence, being free of interestedness, is
fully reliable.
34. Then in regard to argument that accused no.2
was not present in the village at the time of incident,
accused no.2 stated like that when he was examined under
section 313 Cr.P.C. What PW22 has answered is that
accused no.2 was living in the parental home of his wife.
The witnesses saw the participation of accused no.2. As
their evidence is believable, if accused no.2 stated at a
later a stage that he was not in the village, it cannot be
believed. Even if accused no.2 was living in his wife's
house at another village, it does not mean that he was not
present at the time of incident. He might have come to
Mamadapur, this inference is possible to be drawn. If it
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was his specific defence, the burden was on him to prove
it. It is enough if defence is found to be probable, but
mere making a statement under section 313 Cr.P.C. does
not stand to the test of probability. Any explanation that
accused gives when questioned under section 313 Cr.P.C
must appear to be reflection of questions about specific
defence put to prosecution witnesses during cross
examination; an accused may lead evidence from his side
if necessary. If a specific defence is introduced for the first
time during section 313 Cr.P.C., stage, it is of no use.
Therefore explanation of accused no.2 cannot be believed.
35. As the evidence discloses, and as Sri. Yug Mohith
Chaudhry also argued, accused no.1 surrendered before
police on 23.10.2013 and handed over the weapon. When
the police produced him before the Magistrate, they did
not seek him to police custody, rather submitted an
application for committing him to judicial custody. We do
not find any infirmity or abnormality in committing accused
no.1 to judicial custody. The evidence of PW25, the
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investigating officer shows that he went to spot on
23.10.2013, conducted spot panchanama, seized certain
material objects, recorded the statements of witnesses and
then returned to police station. After his return to police
station accused no.1 surrendered before him and handed
over one koita(sickle) and his blood stained clothes, a
mobile phone and a memory card. The moment he
surrendered before the police officer, it means he was
under police custody. But by that time PW25 had already
completed other part of investigation including recording
the statements of eye witnesses. When accused no.1
handed over the koita and other items, PW25 seized them.
For these reasons PW25 might have thought it
unnecessary to apply for police custody of accused no.1,
whose presence probably was not required for further
investigation. In this context it may be stated that it is not
always necessary that police custody must be sought, the
investigating officer may decide in his wise discretion to
apply for police custody or not.
- 50 -
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36. It is true that till 29.10.2013, as becomes
evident from the evidence of PW22, PW25 did not order for
arrest of accused 2 to 4. PW25 has not stated anything
about it. This appears to be a lapse in investigation, but
not so serious a lapse as to vitiate the investigation.
Conversely the evidence of PW25 discloses that by the
time accused nos.2 to 4 were arrested, major part of
investigation was over, what remained was to obtain some
reports, for which reason police custody of accused nos.2
to 4 was not necessary.
37. It has been argued by Sri. Yug Mohith Chaudhry
that the prosecution produced only two weapons marked
MO8 and MO15. The witnesses speak that three weapons
were used. PW2 has stated that two koitas were seized in
his presence. He has identified one iron koita at MO8 and
another iron elige patti (F½UÉ ¥ÀnÖ ) at MO13. From the
evidence of PW25, it becomes clear that accused no.1
produced one weapon which PW25 has identified as MO15.
It was PW2 who first identified MO15. It is to be stated
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that Elige Patti is also a weapon. If witnesses stated that
there were three koitas, probably they might have referred
to Elige Patti to koita. The discrepancy in this regard is not
prominent. Totally three weapons were produced during
trial. Therefore for all the above reasons, we find it
difficult to accept the argument of Sri. Yug Mohith
Chaudhry, and therefore hold that the evidence of PW2,
PW10, PW12 and PW22 is trustworthy and the trial court
has not erred in acting upon their testimonies.
Point No. (iii)
38. Certainly if a husband finds his wife to be
having illicit relationship transgressing the matrimonial
discipline, it evokes anger in him, and how a husband
reacts to a situation like this depends on his personality.
Different persons react differently. This is connected with
human behaviour influenced by sociological background. In
the case of K.M. Nanavati Vs. State of Maharashtra 14,
cited by Sri Vishwanath Bichagatti and Sri Yug Mohith
AIR 1962 SC 605
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Chaudhry, the following is the observation :
"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."
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39. In Dauvaram Nirmalkar, the Hon'ble Supreme
Court reiterated the same position by placing reliance on
Nanavati. The facts in the case discloses that the
accused-appellant killed his own brother Dashrath
Nirmalkar who was not only addicted to alcohol but also ill
tempered. On the night of occurrence, Dashrath Nirmalkar
consumed alcohol and asked the appellant to leave the
house, else he would kill him. This made the appellant
lose his self control on account of a 'slow burn' reaction
followed by the final and immediate provocation. In these
circumstances, the Hon'ble Supreme Court found that
Exception 1 to section 300 of IPC could be applied to
convict the appellant under part I of section 304 of IPC.
40. Three other decisions relied upon by Sri Yug
Mohith Chaudhry depict the facts which do not constitute
an offence punishable under section 302 of IPC. Saroj @
Suraj Panchal and Another vs State of West Bengal15
discloses the facts that the daughter of accused no.1
(2014) 4 SCC 802
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namely Kumari Bandana Panchal and the deceased namely
Sukumar Ray were in love with each other to the disliking
of the family of accused no.1. On 10.07.1990 around 8.00
p.m all the accused severely beat the deceased seeing his
presence in their house. The appearance of the deceased
during night hours in their house caused very much
annoyance to them and being unable to tolerate the
presence of the deceased was held by the Supreme Court
to be the reason for the accused getting provocated
suddenly and therefore it was held that Exception 1 to
section 300 could be applied.
41. In Sudhir Prakashnarayan Shrivastav vs
State of Maharashtra16, the facts indicate that the
deceased namely Pramod was a vendor of tender coconuts
and the accused was a cycle tyre repairer. Both were
addicted to liquor. On the date of incident the deceased
demanded money from the accused to buy liquor, but the
latter refused. Thereafter the deceased went to the shop of
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the accused and urinated in the water being used by the
accused for repairing the cycle tyres and then abused him.
Offended by this conduct of the deceased, the accused
took the scythe from the cart of the deceased and gave
blows to him on the neck, shoulder, face, abdomen etc., in
all causing 13 injuries. In these circumstances the Hon'ble
Supreme Court held that passing of urine in the water
caused sudden provocation to the accused and he lost his
temper beyond his control which was reflected from
multiple injuries that he implicated. In this background,
First Exception to section 300 IPC was made applicable.
42. Gurubasavaiah and Another vs. State of
Karnataka17 is a judgment of the Division Bench of this
court where the facts show that the deceased gained entry
stealthily into the house of the accused. There was illicit
relationship between the deceased and accused no.3, who
was the wife of accused no.1. Accused no.2 is the son of
accused nos.1 and 3. Seeing the presence of the deceased
(1979) Crl.LJ.603
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in the night hours, accused nos.1 and 2 were suddenly
provoked and in that heat they assaulted and killed the
deceased. Therefore the accused were found guilty of the
offence under section 304 part-II IPC instead of section
302 of IPC.
43. Now we refer to the decisions referred by Sri
Vishwanath Bichagatti. Abalu Das Vs. The King
Emperor18 is the judgment of Calcutta High Court where
punishment of life imprisonment for the offence under
section 302 IPC was reduced to rigorous imprisonment for
ten years by applying Exception 1 to section 300 of IPC.
Therein the facts were that the deceased namely Hur
Singh had developed intimacy with Lakya, the wife of
Abaludas. On the night of 21.05.1900, Hur Singh went to
the house of Lakya on her invitation. At that time,
Abaludas and other accused seized Hur Singh, carried him
to a distant place and broke his arms and one leg. They
left him in open. Hur Singh died on the next day in the
1901 SCC Online Calcutta 69
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hospital. Assessing this situation it was held:
"Learned counsel for the Crown has
suggested that the accused laid an ambush for
the deceased, and that the woman was made
use of to decoy him into the house. We feel
very doubtful, however, whether the woman
could have been a party to such a design. It
may be that the accused were watching the
woman and lying in wait for the deceased,
whom they know to be the lover of Lakya; and
that may account for their springing on him, as
they did. But however this may be, in our
opinion the provocation afforded by the
deceased did amount to grave and sudden
provocation within the meaning of exception
(1) to s.300 of the Penal Code, 1860. The
learned Judge does not accept this plea,
because the accused took the deceased to
some little distance, before they murdered him.
But we think that the provocation was of a
nature that would continue to influence the
feeling of the accused for a considerable period
after the deceased was caught in the bari in
the company of Lakya; and for these reasons
we are inclined to take a merciful view of the
case and to alter the conviction from one under
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s.302 of the Indian Penal Code, 1860 to one
under s. 304 of the Indian Penal Code, 1860,
which we accordingly do. Further, we reduce
the sentences passed upon Santiram Das and
Sakalu Das to rigorous imprisonment for ten
years in each case, while we reduce the
sentence passed upon Abalu Das to one of
rigorous imprisonment for seven years."
44. Emperor Vs. Balku19 is the judgment of the
Allahabad High Court. Here the facts were that Budhu, the
person killed and the accused were sleeping on the same
charpai in the varanda of the house of the accused. In the
midnight Budhu got up and went into the room where the
wife of the accused was sleeping. After bolting the door
behind him Budhu started having intercourse with the wife
of the accused. Accused got up and peeped through a
chink of the door and saw Budhu and his wife having
sexual intercourse. The accused returned and slept on the
charpai. After sometime, Budhu came out of the room and
lay down on the same charpai by the side of accused.
1938 SCC Online Allahabad 364
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When Budhu started dozing accused got up and stabbed
Budhu several times and killed him. The question that
arose was whether Exception 1 to Section 300 of IPC could
be applied. The answer was:
"A point that gave us some doubt is
whether the fact that the accused, after having
seen the adultery being committed, waited
until Budhu had come out and had lain down
and begun to doze on the charpai, before he
made an attack on him, would have an effect
on this case. The question before us is
whether the case comes within exception 1 to
section 300 of the Penal Code, 1860 which
states as follows:- "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." Now for this
exception the accused must be deprived of the
power of self control by provocation which is
not only grave but also sudden. No doubt the
accused had to wait some interval before
Budhu came out, before he could do anything
at all, and after Budhu came out the accused
who was lying on the charpai naturally waited a
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short time before he made a move. He might
have sprung up at once and attacked Budhu.
But in practice persons of this class are
somewhat slow movers. When Budhu came
into intimate contact with the accused by lying
beside him on the charpai this must have
worked further on the mind of the accused and
he must have reflected that "this man now
lying beside me had been dishonouring me a
few minutes ago." Under these circumstances
we think that the provocation would be both
grave and sudden. We have been referred to
Abalu Das v. King Emperor, where there was a
case in which it was held that when certain
accused persons had the provocation of seeing
adultery being committed by the deceased with
the wife of one of them, the provocation would
be considered to be grave and sudden after an
interval during which the deceased man was
taken to a certain distance before being
assaulted. We think that in the present case
the exception No.1 will apply, and accordingly
we reduce the conviction from one under
section 302 of the Penal Code, 1860 to one
under section 304 of the Penal Code, 1860.
We sentence the accused to five years' rigorous
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imprisonment and we acquit him of the offence
under section 302 of the Penal Code, 1860 and
we allow the appeal to this extent."
(emphasis supplied)
45. Next judgment is Boya Munigadu Vs.
Queen20. In this case the accused found that the deceased
was having connection with his wife and was moved
intensely by what he saw. At that moment he did not
react, but on the next day morning he saw his wife eating
with the deceased without serving food to him. As he was
a witness to what had occurred on the previous evening,
that provoked him to kill the deceased, namely,
Narasimhudu. When this circumstance was brought to
fore, the Madras High Court held as below:
"In the morning he saw his wife eating
with the deceased and giving him food while
she left her husband without it. If he had not
been a witness to what had occurred on the
previous evening, this conduct would have a
special significance, indicative of improper
relations between the deceased and the wife;
1881 SCC Online Madras 1
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and, if having witnessed the act of adultery, he
connected this subsequent conduct, as he could
not fail to connect it, with that act, it would be
conduct of a character highly exasperating to
him, implying, as it must, that all concealment
of their criminal relations and all regard for his
feelings were abandoned and that they
purposed continuing their course of misconduct
in his house. This, we think, amounted to
provocation, grave enough and sudden enough
to deprive him of his self -control, and reduced
the offence from murder to culpable homicide
not amounting to murder."
46. The judgment of the High Court of Madras
(Madurai Bench) in Poovamal Vs. State21, also deals with
applicability of Exception 1 to section 300 in the
background of circumstances that the mother herself killed
her son when the latter disagreed to live with her. The
accused became helpless after the death of her husband.
She requested her son, i.e., the deceased, to live with her
and all her requests to convince him went in vain. This
2012 SCC Online Madras 489
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resulted in her axing the son to death. The findings of the
Madras High Court are found in paragraph no. 43 which is
extracted below.
"43. There was no premeditation. She
suddenly picked up the axe. The situation was
not created by her. It was created by her son.
Her immediate post conduct was her attempt
to kill herself. What she did was killing of her
son. In the facts and circumstances, it is an
intentional act, why and under what
circumstances she did it, we have already seen.
So Poovammal's case will not fall under Section
300, I.P.C. read with Section 302, I.P.C. but
will fall under Exception I to Section 300, I.P.C.
so she become punishable under Section 304,
I.P.C., Part I."
47. In order to assess the argument of both the
counsel, we now refer to Exception 1 to section 300 of IPC
which reads as below:
"300. Murder ....
Exception 1.-When culpable homicide is not
murder.-Culpable homicide is not murder if
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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.
Explanation
Whether the provocation was grave and sudden
enough to prevent the offence from amounting
to murder is a question of fact."
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48. The language of the provision of law is very
clear that the provocation must be grave and sudden, and
it must result in depravation of the power of self control of
the offender and in that state of mind he must have
caused the death of a person. If these ingredients are
forthcoming in the evidence brought on record, the
offender can be said to have committed culpable homicide
not amounting to murder which is punishable according to
section 304 of IPC. Explanation part makes it further clear
that based on facts, the court has to decide whether
provocation was grave and sudden. It means the evidence
brought on record must disclose that the circumstances
were as such that the accused had in all probability lost
control over himself because of sudden provocation,
however assessment of evidence to this effect must be
made in the light of three provisos to Exception-I.
49. The provocation may be short lived; the
accused may endure the provocation for a considerable
time, however it should not be too long. Endured or
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sustained provocation requires elucidation that the
provocation emanated from the victim must have
tormented the accused; it should be persisting in him and
any further act at the instance of victim must appear to be
sufficient to evoke the feelings of the tormenter or sufferer
to lose control over himself and do an act resulting in
death of the victim (provoker). The ultimate act of causing
death must also appear to be the outburst of sustained
provocation and it must be free from preparation and
premeditation. The whole circumstance must not disclose
malice which engenders intention to kill.
50. In the case of K.M. Nanavati, it is held as
below:
"139. The question that the Court has to
consider is whether a reasonable person placed in
the same position as the accused was, would have
reacted to the confession of adultery by his wife in
the manner in which the accused did. In Mancini
v. Director of Public Prosecutions L.R. (1942) A.C.
1, Viscount Simon, L.C., states the scope of the
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doctrine of provocation thus:
It is not at all provocation that will reduce
the crime of murder to manslaughter.
Provocation, to have that result, must be
such as temporarily deprives the person
provoked of the power of self control, as the
result of which he commits the unlawful act
which causes death. ... The test to be
applied is that of the effect of the
provocation on a reasonable man, as was
laid down by the Court of Criminal Appeal in
Rex v. Lesbini (1914) 3 K.B. 1116, so that
an unusually excitable or pugnacious
individual is not entitled to rely on
provocation which would not have led an
ordinary person to act as he did. In
applying the test, it is of particular
importance to (a) consider whether a
sufficient interval has elapsed since the
provocation to allow a reasonable man time
to cool, and (b) to take into account the
instrument with which the homicide was
effected, for to retort, in the heat of passion
induced by provocation, by a simple blow, is
a very different thing from making use of a
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deadly instrument like a concealed dagger.
In short, the mode of resentment must bear
a reasonable relationship to the provocation
if the offence is to be reduced to
manslaughter."
(emphasis supplied)
51. The present case has to be examined in the
light of above principles. We state that none of the rulings
cited by Sri Vishwanath Bichagatti and Sri Yug Mohith
Chaudhry helps the accused for, the facts in them show
that the acts were done in the state of provocation which
did not last long; moreover no case discloses any kind of
preparation made by the accused. The finding in Abalu
Das is that visit of the deceased to the house of the
accused to meet the wife of the latter ignited provocation
in him. The case of Balku also demonstrates eruption of
provocation in him when he peeped through the chink of
the door and saw his wife and the deceased having sexual
intercourse. The time interval between his seeing the
intercourse and till the deceased came out of the room to
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sleep beside him was not too long. Boya Munigadu
indicates the hurt feelings of the accused being inflamed
when he was ignored by his wife without serving food to
him on the next day morning. Here also the provocation
was for a shorter duration of not more than a day. In the
case of Poovamal what figures out is that actually she lost
control over herself when her last request was turned
down by her son, it was a momentary reaction and not a
premeditated one.
52. In the decisions cited by Sri Yug Mohith
Chaudhry, which are referred to already the facts disclose
altogether a different situation to take a view that the
crimes referred there might have been taken place in a
circumstance falling under Exception 1 to section 300. To
repeat, in Dauvaram Nirmalkar, the accused got
enraged when the deceased, an alcoholic and quarrelsome
by nature, asked him to leave the house or else he would
be killed. No doubt, the accused had tolerated the
deceased, but the last incident of quarrel might have
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triggered his feelings, and the fact of his losing self control
became evident when he tried to kill himself by holding
live electric wire. Saroj @ Suraj Panchal is not a case of
sustained provocation; the appearance of deceased in the
house of accused for the purpose of meeting his girlfriend
suddenly aroused provocation in them as they disliked the
love affair between the daughter of accused no.1 and the
deceased. Sudhir Prakashnarayan Srivastav is also a
case of sudden provocation. Urination in the water being
used by the accused for his tyre repair work was the main
reason. Multiple injuries inflicted by accused demonstrated
loss of self control in such a situation.
53. In the present case, we do not find such kind of
a situation as appears in the above referred rulings, rather
what is disclosed is a well planned action. From the
suggestions given to the eyewitnesses in the cross
examination, a clear inference can be drawn that illicit
relationship between the two deceased was known to the
accused and many people in the village. Suggestion given
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to PW2 in the cross examination is that Sangeeta was
going to the house of Basavaraj and that the latter's
mother had given Sangeeta leniency and in fact,
Basavaraj's mother had brought Sangeeta to her house.
PW10 was suggested that Sangeeta was living in the house
of Basavaraj and that the father of Basavaraj caught them
red handed when both of them were found together amid
standing jawar crop. PW-11, the mother of Basavaraj is
given a suggestion in such a way as she was supporting
the illicit relationship between her son and Sangeeta and
therefore for that reason there used to take place quarrels
between her and her husband. Suggestion given to PW-12
in the cross examination is that Sangeeta was present in
the house of Basavaraj on the date of incident. PW-22 is
suggested that both the deceased used to meet in the
jowar fields for quite a long time. Another answer was
elicited from him that Basavaraj used to be found with
Sangeeta and that PW-22 and his family members had
advised him that he should not take leniency with
Sangeeta as she was the wife of another. Therefore from
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all these suggestions a clear inference can be drawn that
the relationship between both the deceased was not anew.
Matter would have been totally different if the relationship
between them had developed one or two days before the
incident took place, if that were to be the case, an
inference could have been drawn about sustaining the
provocation when accused no.1 came to know of his wife
having developed relationship with Basavaraj. The
circumstances are as such that accused no.1 was aware of
the relationship; he had sufficient time to ponder over the
same; he did not retort within a short duration of time.
But what the evidence discloses is a premeditated planned
action. Accused 1 to 4 joined together; first they all went
near the house of Basavaraj, called him out of his house
and then tied him to a tree. Then Sangeeta was brought
from her house i.e, from the house of accused no.1. She
was also tied to the same tree. Accused no.1 brought
sickles from his house. All these do not indicate a decision
taken in a haste under the state of provocation.
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54. It is true that second accused asked the eye
witnesses to listen to a conversation between the two
deceased which was recorded in a mobile phone.
Vishwanath Bichagatti's argument was that if the trial
court had heard the conversation it would have been
possible for the trial court to take a proper decision. In
fact, the judgment of the trial court shows that the public
prosecutor made an effort to play the mobile phone, but
the trial court found that no other supporting material or
record was available to accept that the voices recorded in
M.O. 29 were that of both the deceased. This conclusion is
incorrect because even according to defence M.O. 29
contained the conversation between both the deceased.
There was no dispute about it and the trial court could
have heard the conversation to draw inferences. Anyway
while hearing the arguments, we heard the conversation
by inserting M.O. 29 to the computer system in the
presence of learned counsel for the accused Sri
Vishwanath Bichagatti and we found that there was a kind
of intimate conversation between the two. But now the
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question is whether this conversation triggered the
provocation. The onus was on the accused to establish
that because of this conversation the accused, especially
the first accused lost control over himself and this led to
the incident of killing the two. It appears that the
accused might have recorded the conversation without the
knowledge of both the deceased. Recording also indicates
that the accused wanted to justify their action if anybody
would question them, and it can also be said it was a part
of their preparation. Looked in this view, it is not possible
to hold that the accused had endured the provocation in
them. The matter would have been altogether different if
only accused no.1 was involved in the incident, but there
were four. If there were to be provocation, accused no.1
being the husband of Sangeeta must have carried it, and it
is inappropriate to say that the conduct of his wife did not
hurt his feelings; he was hurt and there is no doubt in it.
But being hurt, what he did thereafter assumes
importance. The matter would have been different had he
alone caused the death of his wife and her paramour. But
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accused 2 to 4 would join him. It is the specific plea of
accused no.2 that he was not present at the scene of
occurrence as he was residing in another village. He has
stated so when he was questioned under section 313 of
Cr.P.C. This is just a statement without any probability in
his stand, for eye witnesses have testified the participation
of accused no.2 in commission of offence. If it is assumed
for arguments sake, that he was residing in another
village, if his presence and participation is proved by the
eye witnesses, the obvious inference is that he might have
been asked by accused no.1 to come over to Mamadapur.
Moreover involvement of accused nos. 3 and 4, who are
cousins of accused nos. 1 and 2 assumes significance. Sri
Yug Mohith Chaudhry argued that all the four accused
belonged to same family, and the affair between the
deceased was a dishonour to the reputation of the family,
and this is how the situation must be gauged. This is only
a plausible argument, but not acceptable because the
whole situation depicts a premeditated action. So we do
not find any circumstance favourable to the accused in
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order to apply Exception-I to Section 300 IPC for punishing
them under Section 304 IPC.
Point No.(iv)
55. We have examined the case on hand in the
background of the principles laid down by the Hon'ble
Supreme Court in the case of Bachan Singh and Machhi
Singh (supra). In the background of the guidelines spelt
out in Bachan Singh, the Hon'ble Supreme Court laid
down the following propositions while deciding Machhi
Singh. The propositions are:
"38. .....
(i) the extreme penalty of death need not
be inflicted except in gravest cases of extreme
culpability;
(ii) Before opting for the death penalty
the circumstances of the 'offender' also require
to be taken into consideration along with the
circumstances of the 'crime'.
(iii)Life imprisonment is the rule and
death sentence is an exception. In other words
death sentence must be imposed only when life
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imprisonment appears to be an altogether
inadequate punishment having regard to the
relevant circumstances of the crime, and
provided, and only provided the option to
impose sentence of imprisonment for life
cannot be conscientiously exercised having
regard to the nature and circumstances of the
crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and
mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances
has to be accorded full weightage and a just
balance has to be struck between the
aggravating and the mitigating circumstances
before the option is exercised."
56. Having laid down the above principles, the
Supreme Court further directed the following questions to
be asked and answered.
"39. In order to apply these guidelines
inter-alia the following questions may be
asked and answered:
(a) Is there something uncommon about
the crime which renders sentence of
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imprisonment for life inadequate and calls for
a death sentence?
(b) Are the circumstances of the crime
such that there is no alternative but to impose
death sentence even after according maximum
weightage to the mitigating circumstances
which speak in favour of the offender ?"
57. Now the case on hand is to be examined in the
background of the above principles. No doubt the incident
was very cruel. It was committed in the presence of many
villagers by rendering the deceased helpless. As they were
tied to a tree, they could not make any attempt to protect
themselves. In spite of the fact that the incident shocks
the conscience, it may be stated that the case does not
answer the test of 'rarest of rare case'. All the accused
were in their prime youth when the incident occurred, and
in fact one of the accused was a juvenile who was tried
separately. In the light of the judgment of the Supreme
Court in the case of Manoj (supra), we called for reports
from the Chief Superintendent, Hindalaga Jail, Belagavi,
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where accused 1 to 3 are serving sentence, the
Psychiatrist of the Belagavi Institute of Medical Sciences
and the Probation Officer. The report of the Chief
Superintendent of Jail is as follows :
58. The present age of first accused is 34 years. His
conduct and behaviour inside the jail is good and
satisfactory. He maintains jail discipline. Before admission
to jail accused no.1 had completed PUC education and
inside the jail, he underwent different kinds of trainings
such as baking technician of food processing, veterinary
assistant training and another training conducted by
Karnataka Sahakara Kukkata Mahamandali, i.e., relating to
poultry farming. He was arrayed as accused in Crime No.
173/2010 registered by Chikkodi Police Station for the
offences under sections 323 and 324 IPC, but no case was
registered in the court pursuant to the said FIR.
59. Regarding the second accused, his conduct and
behaviour as a prisoner is reported to be good and he also
maintains discipline inside the jail. His present age is 31
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years. He is illiterate, but being an inmate of the jail, he
underwent job related training, i.e., Self employed tailor of
apparel, made-ups and home furnishing. He too was
shown as accused in Crime no. 173/2010, but no charge
sheet appears to have been filed.
60. Age of accused no.3 now is 30 years. The report
about him is that his conduct is good and satisfactory
inside the jail and he too maintains jail discipline. Before
admission to jail, he had completed VIII standard and
being an inmate of the jail he did not acquire any training.
Except the present one, he was not involved in any other
case. Jail authority has enclosed certificates relating to
trainings undergone by accused nos. 1 and 2.
61. The report of the Probation Officer is the family
of accused 1 and 2 depends on agriculture for their
livelihood. The family possess four acres of land. Family
is not sound financially. The Probation Officer has stated
that before the incident took place, the conduct and
behaviour of accused 1 and 2 was good and they had good
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relation with the other villagers; they were mixing freely
with the villagers and were also involving themselves in
the social activities. Same is the report of the Probation
Officer about accused no.3.
62. The mental status examination report issued by
Dr.Chandrashekar T.R, Department of Psychiatry, Belagavi
Institute of Medical Sciences, is not adverse to accused 1
to 3 and he has indicated that they have tendency for
reformation. It is also mentioned that according to the
information given to him by the staff of the jail, there is
possibility of reformation.
63. All the three accused are still young. Accused 1
and 3 expressed remorse for their wrongness when we too
examined them in the court. Though accused no.2 stated
that he had no remorse, we think that in view of the
reports, he is a person who can be reformed. If an
opportunity is provided to them to reform themselves,
they can turn out to be better citizens. Therefore drawing
balance sheet between aggravating and mitigating
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circumstances as has been observed by the Supreme Court
in Machhi Singh, we find that death penalty cannot be
imposed on accused 1 to 3. It is enough if they are
sentenced to life imprisonment and fine. Point No.(iv) is
thus answered.
Point No.(v)
64. We do not think that accused could be convicted
for the offence under Section 307 IPC. What the evidence
discloses is that when PW2 went forward for the rescue of
the deceased persons, the accused threatened to kill them.
No doubt this amounts to intimidation but it does not
disclose the intention of the accused to make an attempt
on the life of PW2. The reaction of accused at that
moment was to alarm those who wanted to come to the
rescue of the deceased. If in that course PW2 sustained
injuries due to impact of sickle held by accused no.1, it
would amount to an offence under section 324 IPC.
Therefore we are of the opinion that holding the accused
guilty of the offence under section 307 IPC is improper.
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However conviction for offence under section 506 IPC has
to be maintained, in as much as the evidence discloses
intimidation caused by the accused when the eye
witnesses attempted for rescue of the deceased.
65. In the result, we pass the following:
ORDER
(i) Reference made under Section 366 of Cr.P.C. is
rejected;
(ii) Appeal preferred by the accused is partly allowed.
The judgment of the trial court holding the
accused guilty of offence under Section 307 of
IPC is set aside. They are held guilty of the
offence under section 324 of IPC and each one of
them is sentenced to rigorous imprisonment for
two years and fine of Rs.5,000/-, and in default to
pay the fine, each of them shall undergo
imprisonment for one month;
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(iii) For the offence under section 302 IPC, each of
accused 1 to 3 is directed to undergo life
imprisonment and pay fine of Rs.25,000/- and in
default of payment of fine, each of them shall
further undergo imprisonment for a period of one
year.
(iv) Conviction and sentence for the offence under
Section 506 of IPC is confirmed.
(v) Sentence of imprisonment for all the offences
shall run concurrently.
(vi) According to section 428 of Cr.P.C, the period of
detention undergone by accused 1 to 3 before
conclusion of trial and the sentence of
imprisonment they have already served after
conviction is ordered to be set off.
(vii) The trial court shall issue conviction warrant in
accordance with the judgment of this court.
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(viii) Registry shall communicate this order to the trial
court and the concerned jail authority.
(ix) Registry of this court shall send back the records
to the trial court.
Sd/-
JUDGE
Sd/-
JUDGE
Bvv/Ckl
