Shankara S/O. Hanumantappa Sali Vs State of Karnataka through

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C 1973., PRAYING TO SET ASIDE THE JUDGMENT DATED 29/07/2019 AND ORDER OF SENTENCE DATED 29/07/2019 PASSED BY II ADDITIONAL DISTRICT AND SESSION JUDGE, AT HAVERI (SITTING AT RANEBENNUR) IN S.C.NO.71/2016 IN CRIME NO.93/2016 OF BYADAGI POLICE STATION CONVICTING THE APPELLANT. CONVICTED AND SENTENCED UNDERGO IMPRISONMENT FOR LIFE AND TO PAY A FINE OF 5000 IN DEFAULT TO UNDER GO RIGOROUS IMPRISONMENT FOR FIVE YEAR FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT THIS DAY, JUSTICE RAJESH RAI K , DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ

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AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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CAV JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE RAJESH RAI K)

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This appeal by the convicted accused is directed against the judgment of conviction dated 29.07.2019 and order of sentence dated 31.07.2019 passed in S.C.No.71/2016 by the II Addl. District and Sessions Judge, Haveri, Sitting at Ranebennur (hereinafter referred to as ‘the learned Sessions Judge’ for short) whereby the learned Sessions Judge convicted the accused for the offence punishable under Section 302 of Indian Penal Code, 1860 (for short ‘IPC’) and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine, to undergo rigorous imprisonment for a period of 5 years.

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Briefly stated, the facts of the case are as follows:

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The deceased-Hanumantappa Sannamariyappa Sali was the father of accused. The accused was a vagabond and therefore, the deceased used to advice him to get into a job. As such, the accused developed hatred towards the deceased. On

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17.04.2016 at about 05:45 p.m., when the deceased was in his

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house, the accused picked up a quarrel with him and all of a sudden assaulted the deceased on his neck with a sickle and fled away from the spot. Immediately, PWs.6 to 8 shifted the injured to Byadagi Government Hospital. After first aid, he was shifted to CG Hospital Davangere for higher treatment. However, the Doctor in the said Hospital advised them to shift the injured to City Central Hospital, Davangere. On the following day i.e., 18.04.2016 when they were on the way to City Central Hospital, Davanagere, the deceased succumbed to the injuries. Hence, PW.2 i.e., the son of deceased lodged a complaint before Byadagi Police Station against the accused on 18.04.2016 at about 11:00 a.m. as per Ex.P6. On the strength of Ex.P6, PW.17-the then PSI of the respondent-Police registered FIR against accused for the offence punishable under Section 302 of IPC in Crime No.93/2016 as per Ex.P17.

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Subsequent thereto, the Investigation OfficerPW.19 conducted investigation by drawing spot mahazar, inquest panchanama and arrested the accused on 18.04.2016 and effected the seizer of M.Os.1 to 5 under panchnamaEx.P10. After recording the statement of material witnesses, on obtaining documents from the concerned authorities, he laid

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charge sheet against accused for the offence punishable under Section 302 of IPC before the committal Court.

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After committal of case before the Sessions Court, the learned Sessions Judge framed charges against the accused for the aforementioned offence and read over the same to him. The accused denied the charges and claimed to be tried.

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To prove the charges leveled against the accused, the prosecution examined 19 witnesses as PWs.1 to 19 and marked 20 documents as Exs.P1 to P20 and identified 5 material objects as MOs.1 to 5. However, the accused marked 1 document as Ex.D1 on his behalf.

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After assessing the oral and documentary evidence, the learned Sessions Judge convicted the accused for the charges leveled against him and sentenced him as stated supra . The said judgment of conviction and order of sentence is challenged in this appeal.

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We have heard the learned Amicus Curiae Smt. Anuradha R. Deshpande for the appellant and learned Addl. SPP Sri A.M. Gundawade for the respondent-State.

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The primary contention of the learned Amicus Curiae for the appellant/accused is that, the learned Sessions Judge grossly erred while convicting the appellant/accused without appreciating the evidence in the right perspective. She contended that there are major discrepancies in the evidence of material witnesses i.e., PW.2-the eyewitness and PWs.6 to 10the hearsay witnesses who visited the spot immediately after the incident. She further contended that, PW.13-the mother of accused and wife of deceased turned hostile to the prosecution case and denied the incident. Hence, the prosecution miserably failed to prove the motive for the commission of crime by the accused. Apart from urging these contentions, the learned counsel alternatively contended that even on considering the entire evidence on record, the act of accused squarely falls under Exception I to Section 300 of IPC which is punishable under Section 304 Part I or II of IPC, as the entire incident occurred in the spur of a moment, when the accused lost self control upon grave and sudden provocation following a quarrel between him and deceased. Additionally, she contended that the accused was suffering from paranoid schizophrenia at the time of incident and as such, he must have lost his self control and might have committed the incident by mistake. Hence, she

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prays to either acquit the accused from the charges leveled against him or to modify the sentence from Section 302 of IPC to Section 304 Part I of IPC.

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Per contra , the learned Addl. SPP contended that the prosecution has placed cogent evidence to prove the charges leveled against the accused and the learned Sessions Judge rightly appreciated the same and convicted the accused in a well reasoned judgment which does not call for any interference at the hands of this Court. He contended that the evidence of PW.2-the eyewitness to the incident clearly established that the accused being the son of deceased was quarrelling with his father and he assaulted deceased with a sickle-M.O.1 and murdered him. Further, the evidence of PW.2 clearly corroborates the testimony of PWs.6 to 8 who visited the spot immediately after the incident and shifted the injured to the Hospital. Additionally, PWs.9 and 10 i.e. the neighbours of the deceased who had immediately visited the scene of occurrence and the saw the injury sustained by the deceased, they also supported the case of prosecution. He further contended that, the incident occurred in the house of deceased where the accused was staying and his presence at the time of incident was proved by the prosecution. The learned Addl. SPP

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also contended that the act of accused does not fall under Exception I to Section 300 of IPC which is punishable under Section 304 Part I or II of IPC since the accused assaulted the deceased with a deadly weapon by choosing the vital part of the body of deceased with an intention to murder him. Accordingly, he prays to dismiss the appeal.

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Having heard the learned counsel for the respective

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parties and on perusal of the entire evidence on record, the points that arise for our consideration are:

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Whether the judgment under this appeal suffers from any perversity or illegality?

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Whether the learned Sessions Judge is justified in convicting the accused for the offence punishable under Section 302 of IPC?

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In order to prove the homicidal death of the deceased-Hanumanthappa, the prosecution relied on the evidence of PW.11-Doctor who conducted the autopsy of the deceased and issued postmortem report as per Ex.P13. After obtaining the RFSL report as per Ex.P12, the Doctor gave his final opinion that the death is due to “combined effect of hemorrhagic shock as well as respiratory interference as a result of obstruction to respiratory passage at the right bronchi

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level by sickle with leaded consequent effects haemopneumothorax” as per Ex.P20. In the postmortem report it is stated that the injuries sustained by the deceased are fresh and ante-mortem in nature. The prosecution also placed inquest panchanama-Ex.P11 drawn on the body of deceased on 18.04.2016 and the panch witnesses for the same i.e., PWs.4 and 5 have stated that they noticed the injuries on the body of the deceased. Hence, on a collective reading of the evidence of PW.11-Doctor, PWs.4 and 5 along with Exs.P11, 12, 13 and 20, we are of the view that the prosecution has proved the homicidal death of deceased.

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To connect the accused to the homicidal death of the deceased, the prosecution significantly relied on the evidence of PWs.2, 6 to 10. Among these witnesses, PW.2 is the son of deceased and brother of accused who set the criminal law into motion by lodging complaint-Ex.P1. In his evidence, he reiterated the assertion made in the complaint. He deposed that the accused had completed SSLC and had discontinued his studies and had become a vagabond. Hence, his father was insisting him to go out and work, which resulted in frequent quarrel between them. On 17.04.2016, too, the accused quarreled with deceased over the same reason and

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assaulted the deceased on his neck with M.O.1-sickle. On hearing the hue and cry of the deceased, the neighbors and relatives of deceased i.e., PWs.6 to 8 came to the house and shifted him to the Hospital. However, on the following day, the deceased succumbed to the injuries. The evidence of PW.2 corroborates the testimony of PWs.6 to 8. All these witnesses have categorically stated that on the date of incident, they heard the rumbling of PW.2 and they rushed to his house and saw that the deceased had sustained injuries on his neck and the sickle-M.O.1 was sticking out the neck of deceased. Immediately they shifted the injured initially to the Byadagi Government Hospital and from there to CG Hospital, Davangere. Later on the advice of Doctor at CG Hospital, when they were shifting the injured to City Central Hospital, Davangere, he succumbed to injuries. Further, PWs.6 to 8 being the relatives of deceased and accused stated that the accused was quarreling with his father before the incident. They also identified M.O.1-sickle in the Court. The prosecution also relied on the evidence of PW.13 the mother of accused and wife of deceased. She partially supported the case of prosecution and stated that on the fateful day the accused assaulted her husband with M.O.1-sickle. Though she turned hostile in

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respect of motive for the incident, to prove the motive, the prosecution relied on the evidence of independent witnessesPWs.9 and 10 who are the neighbors of the deceased. According to them, the accused was quarrelling with his father and was not doing any work. They deposed that on the date of incident, they came to know through PW.2 that the accused assaulted the deceased with M.O.1-sickle and stated that on the following day, the deceased succumbed to the injuries.

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Hence, on examining the evidence of all these witnesses, their evidence is consistent and trustworthy. Though the defence subjected them to intense and extensive crossexamination, nothing worthwhile was elicited from them to discard their testimony.

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Further, the Investigation Officer-PW.19 sent M.Os.1 to 5 for chemical examination and PW.18-FSL Officer gave his report as per Ex.P12 stating that all the material objects were stained with human blood of ‘A’ group. The recovery of M.Os.1 to 5 under Ex.P10 was supported by the mahazar witness-PW.3. As stated supra, M.O.1 was identified by PWs.1, 6 to 10. In such circumstance, the oral testimony of material witnesses corroborates the medical and scientific evidence. As rightly contended by the learned Addl. SPP, the

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accused failed to explain the circumstance in his statement recorded under Section 313 of Cr.P.C or by leading defence evidence as to why he was falsely implicated in this case being the son of deceased and that too when the offence took place in the house of deceased where the accused was residing. Hence, on overall perusal of the evidence on record, we are of the considered view that the accused alone had committed the offence and he is solely responsible for the homicidal death of deceased.

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With regard to the alternative contention of the learned counsel for the accused, as discussed supra, the motive for the commission of crime is that, the accused was jobless and the deceased was insisting him to do some job. On the fateful day the deceased raised the same topic and all of a sudden, the accused picked up a sickle which was readily available in the house and struck the deceased on his neck. PW.6 in his evidence admitted that the accused was mentally unsound since childhood and the deceased had taken him to several temples to perform pooja for his illness. The accused was treated in several hospitals for his illness. Further, to prove this aspect, the learned counsel for the accused produced some documents along with an application dated 27.06.2022. On

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perusal of the documents, the same are issued by the Dharwad Institute of Mental Health and Neuroscience, Dharwad which showed that the accused was suffering from paranoid schizophrenia and he was treated in the said Hospital. In such circumstance, it can be gathered that the act committed by the accused was not with a premeditative motive to murder his father and also there was no preparation. The complaint and evidence of PW.1 clearly reveals that, on the fateful day, the deceased was insisting the accused to do some job instead of wandering about wastefully. No one has deposed as to what exactly were the words used by the deceased and the accused. It could be that the accused was enraged and hence provoked by the deceased who pulled out a sickle, which is normally available in any rural household and struck the deceased. Therefore it appears that, the incident happened in spur of a moment and in a fit of rage. The accused not being a normal person could have lost power of self control and could have murdered the deceased.

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In such circumstance, the Hon’ble Apex Court in the

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case of DAUVARAM NIRMALKAR vs. STATE OF CHHATISGARH reported in AIR 2022 SC 3620 held that, when there was a sudden loss of self control on account of the

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"slow burn" reaction followed by the final and immediate provocation and if there is a temporary loss of self-control as the accused had tried to kill the deceased, then the offence has to be considered as one committed due to a sudden and grave provocation with the loss of self control. Hence, the conviction was converted from Section 302 to Section 304 Part 1 of IPC. In the above judgment by referring the judgment K.M Nanavathi vs. State of Maharashtra 1962 , held in paragraph Nos.10, 11, 12 are as under:-

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" 10 . Interpreting Exception 1 to the Section 300 in K.M. Nanavati v. State of Maharashtra, 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

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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 selfcontrol 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 Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and

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not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.”

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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, as:

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“…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 selfcontrol 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 selfcontrol, 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

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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 shortsighted, 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”.

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The Hon’ble Apex Court further held that, the prosecution must prove the guilt of the accused and it must establish all the ingredients of the offence with which the

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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 to Section 300 of IPC. However, to discharge his burden, the accused may rely upon the case of the prosecution and evidence adduced by the prosecution in the Court.

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On applying the above principles to the facts and circumstances of this case and considering the aspect that, accused was none other than the son of deceased and the incident may have been caused in the spur of a moment due to sudden loss of self-control, the offence committed by the accused clearly falls under Exception 1 of Section 300 of IPC which is punishable under Section 304 Part I of IPC. Hence, we are of the considered view that the conviction and sentence imposed by the learned Sessions Judge is liable to be modified for the offence punishable under Section 304 Part I of IPC instead of Section 302 of IPC.

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Before parting, we appreciate the accurate and a thoroughly professional assistance rendered by the Amicus Curiae Smt. Anuradha R. Deshpande and the same is placed on the record.

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Accordingly, we answer point No.1 raised above in

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the negative and point No.2 as partly affirmative and proceed to pass the following:

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ORDER

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i. The criminal appeal is allowed-in-part .

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ii. The judgment of conviction dated 29.07.2019 and order of sentence dated 31.07.2019 passed in S.C.No.71/2016 by the II Addl. District and Sessions Judge, Haveri, Sitting at Ranebennur is hereby modified to Section 304 Part I of IPC instead of Section 302 of IPC.

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iii. The accused is convicted for the offence punishable under Section 304 Part I of IPC.

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iv. The appellant/accused is sentenced to undergo imprisonment for a period of 10 years and he shall pay a fine of Rs.10,000/- for the offence punishable under Section 304 part I of IPC and in default, he shall undergo simple imprisonment for a period of six months.

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v. The accused is entitled for benefit of set off under Section 428 of Cr.P.C.

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vi. The Karnataka State Legal Services Authority is directed to pay Rs.20,000/to Smt. Anuradha R. Deshpande, learned Amicus Curiae for the appellant, who has assisted the Court in this matter.

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vii. Registry is directed to send back the trial Court records along with the certified copy of this judgment to the concerned Court, forthwith.

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SD/(R.NATARAJ) JUDGE

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SD/(RAJESH RAI K) JUDGE

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HKV CT:PA

Shankara S/O. Hanumantappa Sali v. State of Karnataka through

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Shankara S/O. Hanumantappa Sali v. State of Karnataka through

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