21.08.2021 passed in S.C.No.102/2016 by the Addl. District
offence punishable under Section 498-A of IPC. Further, the
Section 302 of IPC and shall pay a fine of Rs.5,000/. It is
2. The abridged facts of the case are as follows:
law P.W.7 and divulged to him about the incident.
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Immediately, P.W.7 rushed to the spot and admitted her to the
hospital in an ambulance. Accordingly, she was admitted as an
inpatient in Government Hospital, Bhalki and was treated by
Doctor-P.W.10. On the same day, i.e. on 02.09.2015, based on
Medico-Legal Case, the PSI- P.W.13 of the respondent-Police
proceeded to the Government Hospital and recorded the
statement of the injured Mukta. On the strength of the said
statement, he registered a case against the accused for the
offences punishable under Sections 498-A and 307 of IPC in
Crime No.193/2015 dated 02.09.2015. Subsequently, after two
days, the injured Mukta was relocated to Latur, Maharashtra for
higher treatment and where she survived for about 18 days and
then succumbed to the injuries on 21.09.2015. Accordingly,
based on the death report of the deceased Mukta, P.W.13
submitted a requisition before the jurisdictional Magistrate to
invoke Section 302 of IPC and accordingly, permission was
accorded by the learned Magistrate to invoke Section 302 of
IPC in Crime No.193/2015. Thereafter, the Investigating Officer
conducted the investigation by drawing mahazars like spot
panchanama and seized M.O.1 and M.O.2 and also conducted
inquest panchanama on the corpse of the deceased. On
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recording the statement of the witnesses, chargesheet was laid
before the committal Court for the aforementioned offences.
3. After committal of the case before the Sessions
Court, the learned Sessions Judge framed charges against the
accused for the said offences and the same was read over
verbatim to the accused, which he denied and claimed to be
tried.
4. In order to prove the charges levelled against the
accused, the Prosecution examined in total 14 witnesses as
P.W.1 to P.W.14, marked 16 documents as Exs.P1 to P16 and
identified 4 material objects as M.O.1 to M.O.4.
5. Following the completion of prosecution evidence,
the learned Sessions Judge read over the incriminating portion
of the material witnesses to the accused as stipulated under
Section 313 of Cr.P.C. which was denied by the accused. The
defence of the accused is of total denial and that of false
implication. However, he neither examined any witness on his
behalf nor got marked any documents supporting his case.
6. Following the assessment of oral and documentary
evidence placed before the Sessions Court, the learned
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Sessions Judge convicted the appellant/accused for the charges
levelled against him and sentenced him as stated supra. The
said judgment of conviction and order of sentence is challenged
in this appeal.
7. We have heard the learned counsel Sri. Girish M.
Patil, for appellant and the learned Additional State Public
Prosecutor Sri. Siddaling P. Patil for the respondent-State. We
have also perused the records made available before us.
8. The primary contention of the learned counsel for
the appellant is that the learned Sessions Judge erred while
convicting the accused for the charges levelled against him
without appreciating the evidence in right perspective. He
further contended that the learned Sessions Judge convicted
the accused solely based on Ex.P8 i.e., the purported statement
given by the deceased before P.W.13-PSI at the hospital.
However, there are no such evidences forthcoming on record
that the injured was in a fit condition to make such statement
before P.W.13. The author of the said statement i.e., P.W.13
failed to obtain the fitness certificate from the duty Doctor
before recording the said statement. Hence, according to the
learned counsel, much evidentiary value cannot be attached to
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Ex.P8. He further contended that P.W.4 the eyewitness to the
incident totally turned hostile to the prosecution case. Though
the prosecution relied on the evidence of P.W.5 to P.W.8,
among them P.W.5 and 8 are the hearsay witnesses to the
prosecution case. According to them, they learnt about the
incident through P.W.7 who admitted the injured to the
hospital. However, according to P.W.7, he reached the spot
after the incident and shifted the injured to the hospital by an
ambulance. In such circumstances, the evidence of these
witnesses are insufficient to prove the charges levelled against
the accused.
9. The learned counsel further contended that there
are serious discrepancies in the evidence of P.W.5 to P.W.8
about the mental and physical harassment meted out by the
accused to the deceased before the incident. Further, in Ex.P8-
complaint it was enumerated that, the accused poured
kerosene on the deceased which was stored in a bottle.
However, the prosecution seized a plastic can from the spot
and the same was sent for FSL, this surfaces doubt in the
genesis of the crime. The learned counsel also submitted that
the respondent-Police failed to make any attempt to record the
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statement of the victim injured in the hospital where she was
admitted for higher treatment at Latur for a period of 18 days
i.e., till her death on 21.09.2015. In such circumstances, the
prosecution case is unreliable and unbelievable. He also
contended that the learned Sessions Judge erred by sentencing
the accused for reminder of his life, thereby the Sessions Court
traversed beyond their jurisdiction in exercising power while
rendering the judgment as this power is not vested with the
Sessions Court as laid down by the Hon'ble Apex Court in
passing such an order. Accordingly, he prays to allow the
appeal by setting aside the impugned judgment.
10. Alternatively, he contended that, even on
considering the entire evidence on record this case squarely
falls within the ambit of Exception 1 to Section 300 of IPC
which is punishable under Section 304 Part-I or II of IPC, as
the entire incident occurred at the spur of moment when the
accused lost self-control upon grave and sudden provocation
following the row between him and the deceased. To buttress
his arguments, he relied on the following judgments:
1. Ramanand @ Nandlal Bharti vs. State of Uttar
Pradesh (Crl.Apl.No.64-65 of 2022; Judgment
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delivered by the Hon'ble Supreme Court of
India on dated 13.10.2022)
2. Rajesh @ Anr. Vs. State of Madhya Pradesh
(Crl.Apl.No.793-795/2022; Judgment delivered
by the Hon'ble Supreme Court of India on
dated 21.09.2023)
3. Matru @ Girish Chandra vs. State of Uttar
Pradesh (Diary No.6033/1968; Judgment
delivered by the Hon'ble Supreme Court of
India on dated 03.03.1971)
4. State of Rajasthan Vs. Wakteng (Crl. Apl. No.
677 of 2002; Judgment delivred by the Hon'ble
Supreme Court of India on dated 07/06/2007).
5. Mavila Thamban Nambiar Vs. State of Kerala
(Judgment of the Hon'ble Supreme Court of
India on dated 09/01/1997).
6. Dattatraya Gawali Vs. State of Maharashtra
(Judgment of the Hon'ble Supreme Court of
Crl.Apl.No.666/2012). India on dated
01/02/2024 in Crl.Apl.No.666/2012).
7. K. Ramachandra Reddy and Another Vs. The
Public Prosecutor (Judgment of Hon'ble
Supreme Court of India, delivered on dated
05/05/1976).
8. Mahadev Singh Vs. The State through Wadi
Police Station (Judgment of Hon'ble High Court
of Karnataka, Kalaburgi Bench in
Crl.Apl.No.200033 of 2023 on dated
22/06/2024).
9. Union of India vs. V. Sriharan @ Murugan
(Crl.Apl.No.1215/2011) decided on 02.12.2015
by the Hon'ble Apex Court.
10. Ravinder Singh Vs. The State Govt. of NCT of
Delhi (Crl.Apl.No.1031/2023 decided on
25.04.2023 by Hon'ble Apex Court)
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11. Narendra Singh @ Mukesh @ Bhara vs. State
of Rajasthan (SLP (Crl.) Nos.7830/21 decided
on 28.02.2022 by Hon'ble Apex Court)
12. Gaurav Rana @ Kala vs. State of Haryana
(Crl.Apl.No.444/2021 decided on 11.08.2021
by Hon'ble Apex Court)
13. Sharafat Ali vs. State of U.P. & Anr. (W.P. (Crl.)
No.439/2021 decided on 10.02.2022 b Hon'ble
Apex Court)
14. Crl.Apl.No.557/2016 (Ravi vs. State of
Karnataka) decided on 23.03.2021 by Hon'ble
High Court of Karnataka, Bengaluru.
11. Refuting the above submissions of the learned
counsel for the appellant, Sri Siddaling P. Patil, the learned
Addl. SPP submitted that the judgment does not suffer from
perversity or illegality since the learned Sessions Judge has
convicted the accused after meticulously examining the
evidence available on record in a well-reasoned judgment. He
also contended that the prosecution has placed sufficient
material to prove the charges levelled against the accused.
Ex.P8 is the complaint given by the deceased herself in the
hospital soon after the incident before P.W.13. The contents of
Ex.P8 clearly corroborate with the evidence of P.W.5 to P.W.8.
Moreover, the evidence of P.W.7 who is the brother-in-law of
the deceased clearly reveals that after the incident, the injured
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called him and informed that the accused had set her ablaze.
Immediately, he rushed to the spot, where she narrated the
incident to him and he admitted her to the Government
Hospital at Bhalki. Thereafter, her statement was recorded by
P.W.13. Nevertheless, the parents of the deceased P.W.5 and
P.W.6 have clearly deposed that the accused, after marrying
their daughter-Mukta, harassed her both physically and
mentally by placing monetary demands before her to gratify his
vices. According to the learned Addl. SPP, the injured had
survived for a period of 18 days after recording of Ex.P8. In
such circumstance, it cannot be said that the injured was not in
a fit condition to give statement as per Ex.P8. He contended
that the minor contradictions in the evidence of material
witnesses do not go to the root of the prosecution case. Hence,
according to him, the learned Sessions Judge has rightly
convicted the accused and accordingly, he prays to dismiss the
appeal.
12. Having heard the learned counsel for the respective
parties, so also having perused the entire evidence and the
documents placed before us, the points that arise for our
consideration are:
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i. "Whether the judgment under this appeal
suffers from perversity or illegality?
ii. Whether the learned Sessions Judge is
justified in convicting the accused for the
offences punishable under Sections 302 and
498-A of IPC?"
13. In the instant case, albeit the prosecution examined
14 witnesses to prove the charges levelled against the accused,
it is redundant to delve into the nitty gritty of individual
evidence of all witnesses, it is sufficient to appreciate the
evidence of material witnesses.
14. In order to prove the homicidal death of the
deceased Mukta in this case, the prosecution has relied on
Ex.P13 the postmortem report which was marked in the
evidence of the Investigating Officer with consent of the
defence. Further, the prosecution also relied on the evidence of
P.W.10-Doctor who initially treated the injured and the case
sheet i.e., Ex.P6. On perusal of Ex.P13 the postmortem report
the cause of death was stated as "septicemic shock due to
burn". On perusal of Ex.P-6 the case sheet placed by P.W.-10,
also mentions that the deceased sustained burn injuries about
35%. Apart from these materials, the prosecution also relied
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on the inquest panchanama drawn on the corpse of the
deceased as per Ex.P5 by P.W.12 the Investigating Officer.
P.W.7 is the witness for the same. Both P.W.7 and P.W.12 have
identified the burn injuries on the corpse of the deceased.
Nevertheless, the prosecution also placed Ex.P15 the case
sheet of deceased maintained by the hospital at Latur. On
perusal of Ex.P15 further revealed that the deceased was
treated for burn injuries for a period of 18 days and thereafter,
she succumbed. In such circumstances, we are of the
considered view that the prosecution has proved the homicidal
death.
15. To connect the accused for the homicidal death of
the deceased, the prosecution predominantly relied on Ex.P8-
the statement made by the deceased soon after the incident
i.e., on 02.09.2015 before P.W.13 in the Government Hospital
at Bhalki. On careful perusal of Ex.P8, the deceased stated
that, following her wedding with the accused she learnt that the
accused was an addict who consumed liquor on everyday basis
and picked row with her demanding money. On 02.09.2015 at
about 7.00 p.m., he came to the house inebriated and
thereafter, had a row with her and verbally abused her. When
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she advised him not to indulge in such acts, out of the blue he
grabbed a kerosene bottle, poured it on her and set her ablaze.
Owing to this she sustained burn injuries. P.W.4 her mother-in-
law was an eye-witness to the incident. Later, the deceased
informed P.W.7-her brother-in-law over a phone call about the
incident, in turn he visited the house and admitted her to a
Government Hospital. Though the said statement of the
deceased was recorded by P.W.13 without obtaining the fitness
certificate from the duty Doctor, nevertheless P.W.13 has
deposed that she was very much conscious and in a lucid state
of mind while narrating the incident. Further, it could be
gathered from the records that the deceased had sustained
35% burn injuries and that she was conscious. It is pertinent to
mention that the evidence of P.W.13 reveals that he obtained
the permission from the duty Doctor to record Ex.P8.
16. Further, the contents of Ex.P-8 clearly corroborates
with the evidence of P.W-7 who admitted the injured to the
hospital. According to him, immediately after the incident, he
visited the house and the injured informed him about the act
perpetrated by the accused. The narration of incident by the
injured to P.W.7 and P.Ws.5, 6 and 8 who have visited the
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hospital on the same night at about 1.00 a.m., clearly
corroborates with the contents of Ex.P8. P.Ws.5, 6 and 8 have
categorically deposed in their evidence that in the hospital the
deceased informed them about the harassment meted out by
the accused and also about the incident on 02.09.2015.
Further, according to them, the injured was very much
conscious at the time. Moreover, P.W.5 to P.W.8 have also
deposed that ever since the deceased was married to the
accused, the accused harassed her physically and mentally by
demanding money.
17. It is vehemently argued by the learned counsel for
the appellant that the prosecution has failed to place any
material evidence to establish that the victim was in a lucid
state to give statement as per Ex.P8 and also to make oral
statements before P.W.5 to P.W.8. On perusal of evidence of
P.W.13 the scribe of Ex.P8, it reveals that the injured was
conscious at the time of deposing her statement and he also
took permission from the Doctor to record such statement.
Admittedly, the deceased had succumbed to the injuries after
20 days from the date of incident. In such circumstances, there
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is no reason to doubt the credibility of the deceased's
statement and also her oral statements to P.Ws.5 to 8.
18. We are aware of the position of law that, if
conviction is based on dying declaration of the deceased, the
same has to be appreciated with due care. The judicial theory
regarding the acceptability of a dying declaration is that such
declaration is made in extremity, when the party is at the
mouth of death, where every hope of this world is waning and
when every motive to falsehood is silenced, the man is induced
by the most powerful consideration to speak truth alone.
Notwithstanding the same, great caution must be exercised in
considering and adducing weightage to such declarations. The
Hon'ble Apex Court in the case of Laxman vs. State of
Maharashtra1 held in paragraph No.3 as under:
"3. The juristic theory regarding acceptability of
a dying declaration is that such declaration is made
in extremity, when the party is at the point of death
and when every hope of this world is gone, when
every motive to falsehood is silenced, and the man
is induced by the most powerful consideration to
speak only the truth. Notwithstanding the same,
great caution must be exercised in considering the
weight to be given to this species of evidence on
account of the existence of many circumstances
which may affect their truth. The situation in which
(2002) 6 SCC 710
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a man is on death bed is so solemn and serene, is
the reason in law to accept the veracity of his
statement. It is for this reason the requirements of
oath and cross-examination are dispensed with.
Since the accused has no power of cross-
examination, the court insist that the dying
declaration should be of such a nature as to inspire
full confidence of the court in its truthfulness and
correctness. The court, however has to always be
on guard to see that the statement of the deceased
was not as a result of either tutoring or prompting
or a product of imagination. The court also must
further decide that the deceased was in a fit state
of mind and had the opportunity to observe and
identify the assailant. Normally, therefore, the court
in order to satisfy whether the deceased was in a fit
mental condition to make the dying declaration look
up to the medical opinion. But where the
eyewitnesses state that the deceased was in a fit
and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be said
that since there is no certification of the doctor as
to the fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying
declaration can be oral or in writing and in any
adequate method of communication whether by
words or by signs or otherwise will suffice provided
the indication is positive and definite. In most
cases, however, such statements are made orally
before death ensues and is reduced to writing by
someone like a magistrate or a doctor or a police
officer. When it is recorded, no oath is necessary
nor is the presence of a magistrate is absolutely
necessary, although to assure authenticity it is
usual to call a magistrate, if available for recording
the statement of a man about to die. There is no
requirement of law that a dying declaration must
necessarily be made to a magistrate and when such
statement is recorded by a magistrate there is no
specified statutory form for such recording.
Consequently, what evidential value or weight has
to be attached to such statement necessarily
depends on the facts and circumstances of each
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particular case. What is essentially required is that
the person who records a dying declaration must be
satisfied that the deceased was in a fit state of
mind. Where it is proved by the testimony of the
magistrate that the declarant was fit to make the
statement even without examination by the doctor
the declaration can be acted upon provided the
court ultimately holds the same to be voluntary and
truthful. A certification by the doctor is essentially a
rule of caution and therefore the voluntary and
truthful nature of the declaration can be established
otherwise."
19. On perusal of the findings of the Hon'ble Apex Court
in the above judgment, a certification by the Doctor while
recording the statement of injured is essentially a rule of
caution and therefore, the voluntary and truthful disposition of
the declaration can be established otherwise. Moreover, there
is no such hard and fast rule that while recording the
declaration of either the deceased or injured, the said
statement must be recorded by the Magistrate or Tahsildar and
the Doctor must be present at that time. In the case on hand,
as stated supra, the statement of the injured was recorded
soon after the incident, and there is no such chance of tutoring
the injured by any of the witnesses or by the Police. Hence, the
aspect that has to be borne in mind is whether the injured was
conscious at the time of making such a declaration.
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20. In the case on hand, on perusal of the contents of
Ex.P8, the evidence of P.W.13 and the evidence of P.W.5 to
P.W.8 and Ex.P15 i.e., the case sheet maintained by the
hospital authorities till the death of the injured, we are of the
view that the injured was conscious and in a lucid state at the
time of making the declaration-Ex.P8.
21. Nevertheless, the evidence of P.W.5 to P.W.8 also
corroborate with the contents of Ex.P8. Though the defence
cross-examined these witnesses at length, nothing worthwhile
was elicited from them to discard their testimony. Even
otherwise, the defence has failed to put forth any defence to
prove the reason for false implication of the accused.
Admittedly, the incident occurred at the matrimonial house of
the deceased. The accused being the husband, is duty bound to
explain and adduce reasons for the homicidal death of the
deceased in his house, since the said aspect is within his
knowledge exclusively as stipulated under Section 106 of the
Indian Evidence Act. Should the accused fail to assign any
such coherent explanation, the Court can presume the accused
as perpetrator as per the provisions stipulated under Section
114 of the Indian Evidence Act.
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22. In the instant case, the defence of the accused is
that the deceased had an extra marital affair with P.W.7 who is
none other than her brother-in-law. When the accused
confronted with the deceased she committed suicide by pouring
kerosene and setting herself ablaze. However, to prove the said
defence, the accused has not examined any witness.
Nevertheless, P.W.8 being the wife of P.W.7 categorically
denied such allegations by the accused. On perusal of the
evidence of P.W.5 to P.W.8, we are of the considered view that
the defence of the accused is not probable one, as such, he
failed to explain the circumstances of the homicidal death of
the deceased in his house on the fateful day.
23. It is also contended by the learned counsel for the
accused that the eyewitness P.W.4 turned hostile. Admittedly,
she being the mother of accused might have turned hostile to
shield the accused from the offence. However, that itself is not
a ground to discard the evidence of other material witnesses
P.W.5 to P.W.8. Further, the minor contradictions in the
evidence of material witnesses do not go to the root of the
prosecution case.
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24. The Hon'ble Apex Court in the case of Mallikarjun
and Ors. vs. State of Karnataka2 has held that the minor
contradictions in the evidence of material witnesses itself is not
a ground to discard their testimony. Further, the Hon'ble Apex
Court held that while appreciating the evidence of a witness,
the approach must be to assess whether the evidence of a
witness read as a whole appears to be truthful. Once the
impression is formed, it is necessary for the court to evaluate
the evidence and the alleged discrepancies and then, to find out
whether it is against the general tenor of the prosecution case.
If the evidence of eye witness is found to be credible and
trustworthy, minor discrepancies which do not affect the core of
the prosecution case, cannot be made a ground to doubt the
trustworthiness of the witness.
25. Further, it is also contended by the learned counsel
for the appellant that, P.W.5 to P.W.8 are the close relatives of
the deceased, they are the partisan witnesses to the
prosecution case, as such their evidence cannot be relied to
convict the accused. However, the Hon'ble Apex Court in the
(2019) 8 SCC 359
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case of Ravasaheb @ Ravasahebgouda etc. vs. State of
Karnataka3 held in paragraph No.17 as under:
"17. "It is clear that it is the quality and not the
quantity of the witnesses that matters. Further in
Paragraph No.25 of the said judgment, it is stated
that "a witness being a close relative is not a
ground enough to reject his/her testimony.
Mechanical rejection of an even "partisan" or
"interested" witness may lead to failure of justice.
The principle of "falsus in uno, falsus in omnibus" is
not one of the general applications".
26. As per the findings of the Hon'ble Apex Court in the
above case, it is clear that the evidence of the material
witnesses cannot be discarded merely on the ground that they
are relatives of the deceased.
27. In such circumstances, on overall re-appreciation of
the evidence available on record, we are of the considered view
that the prosecution has proved the accused as the perpetrator
of the crime and he is responsible for the homicidal death of
the deceased.
28. Coming to the alternative submission by the learned
counsel for the appellant that this case falls within the ambit of
Exception-1 to Section 300 of IPC, on careful perusal of the
2023 LiveLaw (SC) 225
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evidence available on record including Ex.P8, the complaint was
lodged by the deceased herself, it could be seen that the
accused being the husband was a habitual alcoholic and on the
fateful day he returned home at about 7.00 p.m. inebriated and
out of the blue he picked a row demanding money to consume
more liquor. When the deceased advised him to quit his vices;
enraged by the same, he poured kerosene on her and set her
ablaze with the aid of a chimney lamp. While interpreting
Exception 1 to Section 300 of IPC, the Hon'ble Apex Court in
the case of DAUVARAM NIRMALKAR VS. STATE OF
CHHATISGARH reported in 2022 SCC OnLine SC 955 held in
paragraph Nos.8, 9, 10, 12 and 13 as under.
"8. However, in our opinion, this case will fall
under Exception 1 to Section 300 of the IPC8.
Bhagwati Prasad Nirmalkar (PW-3), the younger
brother of the appellant and the deceased, had
deposed that the deceased used to frequently drink
alcohol, barely interacted with the family, and used
to debate and quarrel with the appellant. Nakul Ram
Sahu (PW-4), the neighbour of the appellant, had
similarly testified that the deceased was addicted to
alcohol and his wife had left him. Dashrath
Nirmalkar's addiction to alcohol, and that he was
extremely abusive and ill-tempered is the common
narration by Geeta Bai (PW-8), wife of Bhagwati
Prasad Nirmalkar (PW-3), and Kumari Shanti
Nirmalkar (PW-9), and Kumari Madhu Nirmalkar
(PW-10), nieces of the appellant and Dashrath
Nirmalkar. The prosecution does not dispute this
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position and in fact, has relied upon these facts to
show motive.
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.
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
selfcontrol; 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:
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"84. Is there any standard of a
reasonable man for the application of
the doctrine of "grave and sudden"
provocation? No abstract standard of
reasonableness can be laid down. What
a reasonable man will do in certain
circumstances depends upon the
customs, manners, way of life,
traditional values etc.; in short, the
cultural, social and emotional
background of the society to which an
accused belongs. In our vast country
there are social groups ranging from the
lowest to the highest state of
civilization. It is neither possible nor
desirable to lay down any standard with
precision: it is for the court to decide in
each case, having regard to the
relevant circumstances. It is not
necessary in this case to ascertain
whether a reasonable man placed in the
position of the accused would have lost
his self-control momentarily or even
temporarily when his wife confessed to
him of her illicit intimacy with another,
for we are satisfied on the evidence that
the accused regained his self-control
and killed Ahuja deliberately.
85. The Indian law, relevant to the
present enquiry, may be stated thus :
(1) The test of "grave and sudden"
provocation is whether a reasonable
man, belonging to the same class of
society as the accused, placed in the
situation in which the accused was
placed would be so provoked as to lose
his self-control. (2) In India, words and
gestures may also, under certain
circumstances, cause grave and sudden
provocation to an accused so as to
bring his act within the First Exception
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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."
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. 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
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events on the day of the fatality, as these are
relevant for deciding whether the accused was
acting under the cumulative and continuing stress
of provocation. Gravity of provocation turns upon
the whole of the victim's abusive behaviour towards
the accused. Gravity does not hinge upon a single
or last act of provocation deemed sufficient by itself
to trigger the punitive action. Last provocation has
to be considered in light of the previous provocative
acts or words, serious enough to cause the accused
to lose his self-control. The cumulative or sustained
provocation test would be satisfied when the
accused's retaliation was immediately preceded and
precipitated by some sort of provocative conduct,
which would satisfy the requirement of sudden or
immediate provocation.
13. Thus, the gravity of the provocation can
be assessed by taking into account the history of
the abuse and need not be confined to the gravity
of the final provocative act in the form of acts,
words or gestures. The final wrongdoing, triggering
off the accused's reaction, should be identified to
show that there was temporary loss of self-control
and the accused had acted without planning and
premeditation. This has been aptly summarised by
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
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that act - can be neither understood nor
evaluated without reference to previous
dealings between the parties."
29. In the said case, the Hon'ble Apex Court held for
clarity that it must be stated that the prosecution must prove
guilt of the accused, i.e., it must establish all the ingredients of
the offence with which the accused is charged, but this burden
should not be mixed with the burden of the accused for
providing that the case falls within an Exception. However, to
discharge his burden, the accused may rely upon the case of
the prosecution and the evidence adduced by the prosecution in
the Court.
30. It is in this context we would refer to the case of
the prosecution. In the case on hand as discussed supra, by
perusal of the evidence of PWs.5 to 8, the witnesses before
whom the deceased deposed about incident that on the fateful
day the accused came to house by consuming alcohol and
picked up a row with her. When she resisted him by advising
him, the incident caused suddenly on a spur of moment. The
accused neither had intent nor knowledge to murder the
deceased. The same is gathered by perusal of medical reports
of the injured where it is enumerated that the injured had
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sustained 35% of burn injuries and she survived collectively for
a period of 20 days. Finally, she succumbed due to septicemia
in the Government Hospital. One of the reasons could be
gathered that lack of proper medical care might have resulted
in her demise. In such circumstances, we hold that
appellant/accused perpetrated the crime out of the blue upon
sudden provocation and owing to loss of self-control on an
account of "slow burn reaction followed by the final and
immediate provocation". Applying the provocation Exception,
we convert the conviction of appellant from Section 302 to
Section 304 Part I of IPC.
31. The Hon'ble Apex Court in the case of State of
Andhra Pradhesh vs. Rayavarapu Punnayya and Another
reported in AIR (1977) SC 45, held that in clause (3) of Section
300, instead of the words "likely to cause death" occurring in
the corresponding clause (b) of Section 299, the words
"sufficient in the ordinary course of nature" have been used.
Obviously, the distinction lies between a bodily injury likely to
cause death and a bodily injury sufficient in the ordinary course
of nature to cause death. The distinction is fine but real, and if
overlooked, may result in miscarriage of justice. The difference
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between clause (b) of Section 299 and clause (3) of Section
300 is one of the degrees of probability of death resulting from
the intended bodily injury. To put it more broadly, it is the
degree of probability of death which determines whether a
culpable homicide is of the gravest, medium or the lowest
degree. The word "likely" in clause (b) of Section 299 conveys
the sense of "probable" as distinguished from a mere
possibility. The words "bodily injury .... sufficient in the ordinary
course of nature to cause death" mean that death will be the
"most probable" result of the injury, having regard to the
ordinary course of nature.
32. As discussed supra, since the deceased had
sustained 35% burn injuries and survived for a period of 20
days following the incident and that her death was due to
septicemia, inference could be gathered, that the degree of
probability of death was lowest and the act of the accused falls
within the ambit of Exception 1 to Section 300 of IPC which
is punishable under Section 304 Part I of IPC.
33. However, the sentence imposed by the Sessions
Court for the offence punishable under Section 498-A of IPC is
just and proper for the reasons discussed supra.
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34. On perusal of the impugned judgment passed by
the Sessions Court, the learned Sessions Judge convicted the
accused for the offence punishable under Section 302 of IPC
and sentenced him to undergo life imprisonment till his last
breath. This sentence imposed by the learned Sessions Judge is
not sustainable under law as per the law laid down by the
Hon'ble Apex Court in the case of Union of India vs. V.
Sirharan @ Murugan & Ors.4 held that awarding of special
category sentence, in substitution of death sentence, that is,
sentence barring remission under Cr.P.C. for specified term
beyond 14 years, or life imprisonment barring remission for
rest of life is valid. It is clarified that however power under
Articles 72 and 161, which is not the same as the statutory
power of remission, is not affected. Award of non-remittal
specified sentence or life imprisonment barring remission for
rest of life, held, not violative of separation of powers. Such
special sentence when imposed under substantive provisions of
IPC, does not overlap procedural power under Cr.P.C. on
considering crime situation in India (particularly nexus between
hardened criminals and ill-gotten wealth and nature of heinous
crimes on the rise), delay in disposal of cases, and balancing
(2016) 7 SCC 1
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interest of victims with those of convicts, such special category
sentence becomes inevitable. Further it was held that such
special category sentence can only be invoked by High Courts
or Supreme Court and not by Sessions/trial Courts. In such
circumstances, the said sentence imposed by the Sessions
Court is not sustainable under law.
35. For the foregoing reasons, the appeal partly
succeeds and we answer point No.(i) in the negative and point
No.(ii) partly in the affirmative and proceed to pass the
following:
ORDER
i. The appeal is allowed in part.
ii. The judgment of conviction and order on sentence
dated 21.08.2021 passed by the Additional District
and Sessions Judge at Bidar in S.C.No.102/2016 is
modified from the offence punishable under
Section 302 of IPC to the offence punishable under
Section 304 Part-I of IPC.
iii. The accused is sentenced for a period which he
has already undergone i.e., 9 years 4 months 17
days as on the date. Additionally, he shall pay a
fine of Rs.2,00,000/- [Rupees Two Lakh Only],
before the Sessions Court, in default of payment of
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fine, he shall undergo simple imprisonment for a
period of two years for the offence punishable
under Section 304 Part-I of IPC.
iv. The sentence imposed by the Sessions Court for
the offence punishable under Section 498-A of IPC
is kept intact.
v. On depositing the fine amount or undergoing the
default sentence, the appellant/accused shall be
released, if he is not required in any other case.
vi. If the fine amount is deposited by the
appellant/accused before the Sessions Court, the
learned Sessions Judge is directed to intimate the
same to P.W.5 and P.W.6 the parents of the
deceased and disburse the same to them equally
on due identification.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV,VGR,SWK
CT: PS
