Karnataka High Court
Shankarappa S/O Mahadevappa Hokeri ... vs The State Of Karnataka on 12 January, 2024
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CRL.A No. 100040 of 2021
c/w CRL.A No. 100634 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 100040 OF 2021
C/W
CRIMINAL APPEAL NO. 100634 OF 2022
IN CRL.A NO. 100040/2021
BETWEEN:
SHANKARAPPA
S/O. MAHADEVAPPA HOSKERI @ GANIGER,
AGE: 41 YEARS, OCC: LABOURS,
R/O: PAYATI ONI, AT PO: NARENDRA TQ: DHARWAD,
DIST: DHARWAD - 580005.
...APPELLANT
(BY SRI. NEELENDRA D. GUNDE, AMICUS CURIAE)
AND:
Digitally
signed by THE STATE OF KARNATAKA,
SHIVAKUMAR
HIREMATH THROUGH DHARWAD RURAL POLICE STATION,
Date:
2024.01.12 R/BY: STATE PUBLIC PROSECUTOR,
15:06:54
+0530 HCK, DHARWA BENCH-580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF
CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT DATED 04/06/2019 AND ORDER OF SENTENCE DATED
04/06/2019 PASSED BY PRINCIPAL DISTRICT AND SESSION
JUDGE DHARWAD IN S.C. NO. 88/2017 CONVICTING THE
ACCUSED NO. 1 AND 2 SENTENCED UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD ONE MOTH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 341 R/W 34 OF IPC ACCUSED NO.
-2-
CRL.A No. 100040 of 2021
c/w CRL.A No. 100634 of 2022
1 AND 2 SENTENCED UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY A FINE OF RS.25000/- IN DEFAULT TO UNDER GO
RIGOROUS IMPRISONMENT FOR TWO YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 R/W OF IPC IN SO FOR
CONCERN WITH THE APPELLANT ACCUSED NO.2.
IN CRL.A NO.100634/2022
BETWEEN:
ALTAF S/O. SAIYAD NADAF,
AGE: 27 YEARS, OCC: COOLIE,
R/O: PYATI ONI, NARENDRA,
TAL: DHARWAD,
DIST: DHARWAD-580005.
...APPELLANT
(BY SRI. VIDYASHANKAR D. DALWAI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH DHARWAD RURAL POLICE STATION,
R/BY: STATE PUBLIC PROSECUTOR,
HCK, DHARWA-580011.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) OF CODE
OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE
JUDGMENT DATED 04/06/2019 AND ORDER OF SENTENCE
DATED: 04/06/2019 PASSED BY PRL.DISTRICT AND SESSIONS
JUDGE DHARWAD IN S.C.NO. 88/2017. CONVICTING THE
ACCUSED NO. 1 AND 2 SENTENCED UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD ONE MOTH FOR THE OFFENCE
PUNISHABLE UNDER SECTION 341 R/W 34 OF IPC ACCUSED NO.
1 AND 2 SENTENCED UNDERGO IMPRISONMENT FOR LIFE AND
TO PAY A FINE OF RS.25000/- IN DEFAULT TO UNDER GO
RIGOROUS IMPRISONMENT FOR TWO YEAR FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 R/W OF IPC IN SO FOR
CONCERN WITH THE APPELLANT ACCUSED NO.2.
THESE APPEALS, COMING ON FOR ORDERS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, THIS DAY, RAJESH RAI
K, J., DELIVERED THE FOLLOWING:
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CRL.A No. 100040 of 2021
c/w CRL.A No. 100634 of 2022
JUDGMENT
These two appeals are preferred by the convicted accused
No.1 and 2 against the Judgment and order of sentence dated
04.06.2019 passed by the Principal District and Sessions Judge,
Dharwad in SC No.88/2017, wherein, the learned Sessions
Judge convicted the appellant/accused No.1 and 2 for the
offences punishable under Sections 341, 302 r/w Section 34 of
IPC and sentenced both the accused to undergo imprisonment
for life and to pay a fine of Rs.25,000/- each for the offence
punishable under Section 302 r/w Section 34 of IPC and in
default of payment of fine they shall further undergo rigorous
imprisonment for a period of 2 years. Further, both the accused
are sentenced to undergo simple imprisonment for a period of
one month for the offence punishable under Section 341 r/w 34
of IPC. Further, learned Sessions Judge also ordered that both
orders of sentence shall run concurrently.
2. The accused No.1 has preferred the appeal
challenging the order of the learned Sessions Judge in Crl.A.No.
100634/2022 and Accused No.2 has preferred the appeal
challenging the order of the learned Sessions Judge in
Crl.A.No.100040/2021. Hence, the appeal is heard and taken
up together for consideration and for the sake of convenience
the appellants in both the appeals are referred to their ranks
before the trial Court.
3. The factual matrix of the case are that -
The deceased Basavaraju had borrowed a hand loan of
Rs.5,000/- from the accused No.1 and as such he had
demanded the return of the same on various occasions. On the
fateful day i.e, on 01.02.2017 at about 10.30 pm accused No.1
has visited the house of PW1 where the deceased was residing
and took along the deceased to his house. Further, when the
deceased had been to the house of the accused No.1, PW.1 was
informed by the PW.5 and 6 that Accused No.1 in collusion with
Accused No.2 have killed the son of PW1. Subsequently, when
visited the scene of crime i.e., the house of accused No.1, PW1
saw that deceased was laying on the ground in the puddle of
blood with bloodstained injuries on his head. It is in this
shocking background, PW.5 and 6 informed the PW1 that they
being the neighbors of Accused No.1 when they were sitting
outside the house heard the hue and cry of deceased and
alarmed, when they visited the house of Accused No.1 they
witnessed that accused No.1 was assaulting the deceased with
wooden rafter and the accused No.2 was holding the hands of
the deceased tightly so as to aid the accused No.1 to assault
the deceased. Further, they also have informed PW.1 that,
when PW.5 and 6 visited the scene of crime, both the accused
has fled away. It is in this background, PW.1 has lodged the
complaint before PW 17/the then police sub-inspector of
Dharwad rural police station as per Ex.P.1. the same came to
be registered in Crime No.15/2017 against the accused persons
for the offences punishable under Sections 341, 302, r/w
Section 34 of IPC as per Ex.P 18.
4. Subsequently, PW.18 took over the investigation
and conducted the inquest panchnama on the dead body of the
deceased as per Ex.P.10 and has drawn the spot mahazar as
per Ex.P.2 also arrested the accused Nos.1 and 2 on
02.02.2017 and based on their voluntary statement, recovered
the weapon which is said to have been used for commission of
the crime, i.e., MO.9/wooden rafter. He also recovered the
bloodstained clothes worn by the accused at the time of
incident. Subsequently, after recording the statement of all the
witnesses and after obtaining the necessary documents from
the concerned authorities, he laid the chargesheet against
Accused No.1 and 2 for the aforesaid offences before the
Committal Court.
5. After committal of the case before the Session
Court, the learned Sessions Judge framed charges against the
accused for the offences punishable under Sections 302, 341,
r/w. Section 34 of IPC and read over the same to both the
accused. However, both the accused denied the charges leveled
against them and claims to be tried.
6. In order to prove the charges leveled against
accused, the prosecution examined in total 18 witnesses before
the trial Court as PW.1 to 18 and marked 30 documents as
Ex.P.1 to 30 so also produced 13 Material Objects as MO.1 to
13. After completion of the prosecution evidence, the learned
Sessions Judge read over the incriminating evidence of material
witnesses to the accused as contemplated under Section 313 of
Cr.P.C. Though the accused have denied the same they have
neither examined any witnesses on their behalf nor placed any
documents in support of their defence.
7. After assessment of the oral and documentary
evidence, the learned Sessions Judge framed the following
points for consideration:
1. Whether the Prosecution proves beyond all
reasonable doubt that on 1/2/2017 at 11.45 p.m. at
Narendra Gram Panchayat Property bearing House
No.4/65 within the limits of Dharwad Rural police
station with common intention, accused no.1 in
connection with loan of Rs.5000/- lent by him to the
son of the complainant by name Basavaraj Irappa
Hosakeri @ Ganiger took said Basavaraj to the above
said property and accused no.2 wrongly restrained
said Basavaraj by tightly catch holding him the
thereby accused no.1 and 2 have committed an
offence punishable under Section 341 r/w Section 34
of I.P.C.
2. Whether the prosecution further proves beyond
all reasonable doubt that on the above date, time
and place, in furtherance of their common intention,
accused no.2 caught hold Basavaraj tightly and
accused no.1 with an intention of causing death or
with the knowledge that he is likely, by such act, to
cause death, assaulted with stick on the head of
Basavaraj causing bleeding injuries and committed
his murder and thereby accused no.1 and 2 have
committed an offence punishable under Section 302
r/w Section 34 of I.P.C.
3. What order?
8. The learned Sessions Judge answered point No.1
and two in the affirmative and point No.3 as per the final order
and convicted the accused for the offences punishable under
Sections 341, 302 R/w. Section 34 of IPC and sentenced them
as stated supra. The said Judgment is challenged under this
appeal by both the accused Nos.1 and 2,
9. Heard the learned counsel appearing in both the
appeals for the appellant i.e., Sri. Vidyashankar G. Dalawai in
Crl.A. No.100634/2022 and Sri.Neelendrad D. Gunde in Crl.A
No.100040/2021 so also the learned Additional State Public
Prosecutor.
10. The learned counsel for the appellant Sri.
Sri.Neelendrad D. Gunde appearing for the accused No.2 in
Crl.A. No.100040/2021 vehemently contend that the Judgment
under appeal suffers from perversity and illegality and the
learned Sessions Judge convicted the accused for the offences
alleged against them without properly appreciating the
evidence and material available on record. He also contended
that the learned Sessions Judge convicted the accused based
on surmises and conjectures, which caused great injustice to
the accused. He would further contend that, the evidence of
PW.5 and 6 who are said to be the eyewitnesses to the
incident, cannot be relied for the reason that their evidence
totally suffers from much contradictions and omissions.
11. He would further submit that the alleged incident
said to have been taken place in the late night at about 11:45
PM in the house of accused No.1. There is no possibility of PW.5
and 6 witnessing the said incident at that point of time. He
would further contend that on perusal of cross-examination of
PW.5 and 6, they categorically admitted that, they neither
made any attempt to pacify the quarrel nor ventured to save
the life of deceased while the quarrel was taking place. In such
circumstances, it cannot be presumed that the PW.5 and 6
have witnessed the incident. The learned counsel would further
contended that there is a delay in recording their statement
which was recorded on the next day of incident i.e., on
02.02.2017. The learned counsel would also content that the
motive for the commission of the crime alleged by the
prosecution cannot be believed sicne, in the cross-examination
of PW.1 -the father of the deceased categorically admitted that
he was not aware about the hand loan obtained by the
deceased from accused No.1. According to the learned counsel,
the prosecution also failed to prove the recovery of the weapon
used for the commission of the offence i.e., MO.9/wooden
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rafter. On these grounds learned counsels prays for
interference by this Court.
12. Learned counsel, Sri. Vidyashankar G. Dalawai
appearing for the accused in criminal appeal No.100634/2022
adopted the arguments advanced by the learned counsel
Sri.Neelendrad D. Gunde.
13. Both the learned counsels, alternatively contend
that, the case on hand is one which falls under the provision of
exception of I of Section 300 of IPC, which is punishable under
Section 304Part I of IPC at the most instead Section 302 of IPC
by contending that both the accused had no knowledge,
intention or preparation to commit the murder of the deceased.
Accused and deceased being the friends, the deceased himself
accompanied the accused No.1 to his house and the entire
incident has occurred in a spur of moment by a sudden quarrel
between the deceased and accused No.1 in such circumstance,
with the grave and sudden provocation the accused No.1 might
have assaulted the deceased with wooden rafter, which was
readily available on the spot.
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14. Refuting the above arguments advanced by the
learned counsels for appellant, the learned Additional State
Public Prosecutor would vehemently contend that the Judgment
under appeal does not suffer from any perversity and illegality
and the learned Sessions Judge, rightly convicted the accused
after appreciating the entire evidence and material available on
record in the well reasoned Judgment. As such, the impugned
Judgment does not call for any interference by this court. He
would further contend that PW.5 and 6 being the eyewitnesses
to the incident, they categorically deposed about the assault
made by accused Nos.1 and accused No.2 facilitating the
Accused No.1 by holding the hands of deceased. He would
further contends that PW.5 and 6, also immediately informed
the incident to PW.1 that is the father of deceased and PW.1, in
turn lodged the complaint before the police soon after the
incident. On perusal of Ex.P.1, the said aspect clearly
forthcoming. In such circumstances, the version of PW.1, 5 and
6 cannot be disbelieved. The learned Additional State Public
Prosecutor also emphasized his argument by relying on the
material evidence of recovery of M.O.9/weapon used for
committing crime under Ex.P.12. He would submit that the
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recovery mahazar witness PW.4 clearly supported the
prosecution case.
15. According to the learned Additional state public
prosecutor, though there are minor discrepancies in the
evidence of PW.5 and 6- eyewitness to the incident, the same
does not go to the root of the prosecution case. Accordingly, he
prays to dismiss the appeal.
16. Having heard the learned counsel for the parties
and also on perusal of the evidence and materials available on
record, including the trial Court records, the point that would
arise for our consideration are that:
"1) whether the Judgment under this appeal is
suffers from perversity and illegality ?
2) Whether the learned Sessions Judge justified
in convicting the accused Nos.1 and 2 for the
offences punishable under Sections 341, 302 R/w.
Section 34 of IPC?"
17. Both the above points being interlinked with each
other, the same are taken up for consideration together. This
Court being the appellate Court, on re-appreciation of the
entire oral and documentary evidence is necessary. On cursory
glance of the evidence of the witnesses before the Trial Court -
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PW.1/Irappa Banappa Hosakeri is the father of the
deceased in this case and he lodged the complaint as per
Ex.P.1 before the respondent police. He reiterated the contents
of Ex.P.1 and deposed that on the date of incident, PW.5 and 6
informed him that his son deceased was assaulted by accused
Nos.1 and 2 in the house of accused No.1. Hence, he rushed to
the spot and found the dead body of the deceased. Thereafter,
he lodged the complaint before the respondent/police against
accused Nos.1 and 2. Though, the learned defence counsel
cross-examined this witness at length, nothing worthwhile has
been elicited from the mouth of this witnesses.
PW.2- Rudragouda Basanagouda Patil is the witness for
inquest panchnama conducted over the dead body of the
deceased at Ex.P.10. He identified his signature on the Ex.P.10
and also identified the injuries found on the dead body.
PW.3-Sangappa Ulavappa Ayatti the witness for spot
mahazar drawn as per Ex.P.2 and he also identified the Ex.P.5
to 10 - photos and a rough sketch of the spot as per Ex.P.9.
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PW.4-Nagappa Basappa Gogi who is a witness for seizure
mahazar the Ex.P.12, the seizure mahazar of MO.9/wooden
rafter from the house of accused No.1 at his instance.
PW.5-Virupakshappa Irappa Hosakeri and PW.6-Ishwar
Basappa Ganiger are the eye-witnesses to the incident. They
both deposed that on the date of incident, they both were
chatting in front of the house of accused No.1, at that time they
heard the hue and cry of deceased and accused from the house
of accused No.1. As such, they went to the house of accused
No.1, where they found accused No.2 was holding the hands of
diseased and accused No.1 was assaulting the deceased with a
wooden rafter on his head. By seeing the said incident, they
both ran away from the spot and informed the same to PW.1-
the father of the deceased.
PW.7-Shivanand Mahadevappa Hangaraki is a witness for
seizure of the clothes of accused No.1 in the police station
under mahazar of Ex.P.14 as per MO.10 and 11.
PW.8-Basappa Mahadevappa Ganiger is a witness for
Mahazar as per Ex.P.15 wherein the cloths of the accused No.2
seized as per MO.12 and 13.
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PW.9-Sanjayya Rudrayya Viraktmath is a witness for the
Ex.P.16- mahazar, wherein the clothes of the deceased were
seized as per M.O.3 to 8.
18. PW.10 and 11- Mallavva and Neelamma deposed
about the motive for the commission of the crime. That is the
loan transaction between the accused No.1 and deceased
Basavaraj.
19. PW.12-Jayaraj Sheshagirirao Kulkarni is a Junior
Engineer of HESCOM issued Ex.P.17 stating that at the time of
the incident, there was an electricity supply at the spot of
incident.
20. PW.13-Ravi Chandrappa Pujar is the then Police
Constable of the respondent-Police Station who carried the FIR
from the Police Station to the Jurisdictional Magistrate. PW.14-
Basavanagouda Paratagouda Marigoudar drawn the spot sketch
as per Ex.P.19. PW.15-Hanumantappa Sangappa Gobbargumpi
is the Police Constable. A photographer who took the photo of
the place of incident so also of the dead body as per Ex.P.3 to 8
under mahazar at Ex.P.13.
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21. PW.16-Dr.Rajashekar Narayan Pattar conducted the
autopsy over the dead body of the deceasedand issued post-
mortem report as per Ex.P.22 and his opinion for cause of
death as per Ex.P.23.
22. PW.17-Mahantesh Kallappa Basapur is the then PSI
who registered the FIR as per Ex.P.17 based on the complaint
of PW.1.
23. PW.18-Prashant Suresh Nayak the investigation
officer, conducted the investigation and laid the charge sheet
against the accused for the aforesaid offences.
24. On careful perusal of the above evidence, in order
to prove the homicidal death of the deceased in this case, the
prosecution mainly relied on the evidence of the Doctor Who
issued the post-mortem report as per Ex.P.22 and his opinion
as per Ex.P.23 that, "death is due to sub archnoid and sub
dural hammerage over right occipital are due to injuries
sustained as a result of Assault and right perietal the deceased
succumbed due to the injuries sustained as a result of assault".
The post-mortem report also discloses that the injuries found
on the dead body are ante0-mortem in nature. This evidence of
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the doctor corroborates the contents of Ex.P.10 - the inquest
panchnama. PW.2 is the witness for Ex.P.2 supported the case
of the prosecution and deposed that he identified the injuries
over the head of the deceased. Hence, on conjoint reading of
Ex.P.10, 22 and 23, we are of the considered view that, the
prosecution proved the homicidal death of the deceased beyond
the reasonable doubt. Nevertheless, the said aspect was not
seriously disputed by the learned counsel for appellant.
25. In order to connect the accused for the homicidal
death of the deceased, the prosecution mainly relied on the
evidence of PW.5 and 6 eye-witnesses to the incident. On
careful perusal of the evidence tendered by PW.5 and 6, they
trotted that on the date of incident, at about 11-00 pm after
having their dinner, they both sitting outside their house at that
time, they heard the hue and cry from the house of accused
No.1, as such they went to the said spot, at that time the
accused No.1 was assaulting the deceased on his head with a
wooden rafter and accused No.2 was holding the hands of the
deceased. Thereafter, they fled away from the scene of
occurrence and informed the same to the PW.1 - the father of
the deceased. They further deposed that, the incident caused at
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about 11:45 PM and they witnessed the incident with the aid of
electrical light burning in the house of accused No.1.
26. Both these witnesses also identified the
MO.9/wooden rafter. Though the defence counsel has cross-
examined both these witnesses at length, except the admission
that neither these witnesses failed to make an attempt to save
the life of deceased nor they both informed to the police
station, nothing worthwhile elicited from the mouth of these
witnesses. Moreover, on perusal of Ex.P.1-complaint lodged by
PW.1, it depicts that PW.5 and 6 have informed the PW.1 about
the incident and thereby PW.1 lodged the complaint. Hence, the
presence of PW.5 and 6 on the scene of occurrence, is
forthcoming in Ex.P.1/complaint which was lodged by PW.1 at
the earliest point of time. Nevertheless, PW.1 also deposed in
his evidence in similar manner. In such circumstances, there is
no reason to disbelieve the evidence of PW.5 and 6.Moreover,
the contents of Ex.P.1 corroborates with the evidence of PW.1
and also PW.5 and 6. Hence, in our considered view, the
learned Sessions Judge has rightly relied on the evidences of
PW.5 and 6 and also the complainant-PW.1 and Ex.P.1 to arrive
at the conclusion.
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27. As rightly contended by the learned Additional State
Public Prosecutor in this case, the prosecution also proved the
recovery of MO.9-wooden rafter which is said to have been
used for the commission of the offence by the accused No.1.
Moreover, the doctor-PW.9 who conducted the autopsy over
the dead body of the deceased also opined that the injuries
found on the dead body of the deceased could have been
caused by MO.9. In such circumstances, the prosecution also
successfully proved the circumstances of recovery and use of
MO.9 by accused No.1 for the commission of crime. Sinc ethsi
case is solely based on the evidences of eye-witnesses as per
the settled position of law by the Hon'ble Apex Court the
motive will not play a vital role in the case on hand.
28. Thus, on perusal of the entire evidence and
materials available on record, we are of the view that, the
appellant and diseased where together during the night hours
and the incident is caused in the house of accused No.1.
therefore Section 106 of Indian Evidence Act would get
attracted and in the absence of any break-in or third party
involvement the chain of facts and circumstance established
beyond doubt bares that the appellants and no other persons
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are the perpetrator who had inflicted the injuries on deceased.
Accordingly, we are in agreement that the reasoning of the trial
Court.
29. However, on careful perusal of the facts and
circumstances of the case as rightly contended by the learned
counsel for appellant, in our considered view, this case would
fall under exception I to Section 300 of IPC which is punishable
under section 304 Part I of IPC instead of Section 302 of IPC.
30. The Hon'ble Apex Court in the case of Duvaram
Nirmalkar Vs. State of Chhattisgarh reported in 2022 SCC
OnLine SC 955 wherein the Hon'ble Apex Court relying on
K.M. Nanavathi Vs. State of Maharashtra reported in
1960(2) SC supp 567 held in paragraph Nos.09 to 17 held as
under -
9. Exception 1 differs from Exception 4 of Section 300 of
the IPC9. Exception 1 applies when due to grave and
sudden provocation, the offender, deprived of the power
of self-control, causes the death of the person who gave
the provocation. Exception 1 also applies when the
offender, on account of loss of self-control due to grave
and sudden provocation, causes the death of any other
person by mistake or accident. Exception 4 applies when
an offence is committed without premeditation, in a
sudden fight in the heat of passion upon a sudden quarrel
and the offender commits culpable homicide without
having taken undue advantage of acting in a cruel and
unusual manner. The Explanation to Exception 4 states
that in such cases it is immaterial which party gives the
provocation or commits the first assault.
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10. Interpreting Exception 1 to the Section 300 in K.M.
Nanavati v. State of Maharashtra,10 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.
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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
Penal Code, 1860. (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,11 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...[I]ndeed, 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...".
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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.12 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
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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 Ashworth13 in the following words:
"[T]he significance of the deceased's final act should be
considered by reference to the previous relations between
the parties, taking into account any previous incidents
which add colour to the final act. This is not to argue that
the basic distinction between sudden provoked killings and
revenge killings should be blurred, for the lapse of time
between the deceased's final act and the accused's
retaliation should continue to tell against him. The point is
that the significance of the deceased's final act and its
effect upon the accused - and indeed the relation of the
retaliation to that act - can be neither understood nor
evaluated without reference to previous dealings between
the parties."
14. Exception 1 to Section 300 recognises that when a
reasonable person is tormented continuously, he may, at
one point of time, erupt and reach a break point whereby
losing self-control, going astray and committing the
offence. However, sustained provocation principle does
not do away with the requirement of immediate or the
final provocative act, words or gesture, which should be
verifiable. Further, this defence would not be available if
there is evidence of reflection or planning as they mirror
exercise of calculation and premeditation.
15. Following the view expressed in K.M.
Nanavati (supra), this Court in Budhi Singh v. State of
Himachal Pradesh14 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
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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 Pradesh15.
16. 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.
17. Applying the provocation exception, we would convert
the conviction of the appellant from Section 302 to Part I
of Section 304 of the IPC.
31. On careful perusal of the dictum laid down by the
Hon'ble Apex Court with the case on hand, the accused and
deceased being the friends and the deceased himself
accompanied to the house of accused No.1 on the date of
incident during night hours and the manner in which the
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incident has been committed in the house of accused No.1 and
the weapon used for the same and also the assault made by
the accused, we are of the view that, the accused might have
forced the deceased to return the loan amount and at that time
a sudden quarrel would have propped up between the accused
and deceased as such on account of loss of self-control and due
to grave and sudden provocation the accused without pre-
meditation in the heat of passion upon a sudden quarrel has
committed the offence of culpable homicide without having
taken undue advantage of acting in a cruel and unusual
manner. Hence, considering the peculiar facts and circumstance
of the case by applying the provocation exception, we would
convert the conviction of the accused from Section 302 to Part I
of Section 304 of the IPC. Accordingly, we answer the above
raised point No.1 in the negative and point No.2 partly in the
affirmative and proceed to pass the following:
ORDER
i. Both the appeals are partly allowed.
ii. The conviction of the appellants in Crl.
A.No.100634/2022 and
Crl.A.No.100040/2021 for the offences
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punishable under Section 302 of IPC is
altered to Section 304 Part I of IPC.
iii. The appellants are sentenced to undergo
imprisonment for 10 years and to pay a
fine of Rs.25,000/- each for the offences
punishable under Section 304 part I of IPC
and in default of payment of fine, they
shall undergo simple imprisonment for a
period of two months.
iv. The sentence imposed for the offences
punishable under section 341, read with
section 34 of IPC is kept-in-tact. Both the
sentence shall run concurrently.
v. Appellant Nos.1 and 2 are entitled for set
off as provided under Section 428 of CRPC.
vi. The Legal Services Authority is directed to
pay Rs.25,000/- to the learned amicus
curiae Sri. Neelendra D. Gunde.
Sd/-
JUDGE
Sd/-
JUDGE
PJ
