High Court
Facts
Cri Appeal Nos.132.22 and 508.16.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.508 OF 2016Suhanabee w/o. Sk. Sattar,Age : 40 years, Occ. Household, r/o. Kahala (Kd)Tq. Naigaon, Dist. Nanded..AppellantVs.The State of Maharashtra..Respondent ANDCRIMINAL APPEAL NO.132 OF 2022Sunilkumar s/o. Adiklal Mandal,Age 27 years, Occ. Convict,r/o. Kanvinda, Post Ramgad,Tq. Pohyahar, Dist. Kamka,Jharkhand..AppellantVs.State of Maharashtra,Through P.S.O. Kuntur, Biloli, Dist. Nanded..Respondent----Mr.G.P.Shinde, Advocate for appellant in Cri. Appeal No.508 of 2016Mr.R.A.Jaiswal, Advocate for appellant in Cri. Appeal No.132 of 2022Mr.S.D.Ghayal, Addl. Public Prosecutor for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON:OCTOBER 01, 2024 PRONOUNCED ON:OCTOBER 07, 2024 2Cri Appeal Nos.132.22 and 508.16JUDGMENT (Per R.G.Avachat, J.) :- The challenge in both these appeals is to the judgmentand order of conviction and consequential sentence passed on12.07.2016, by learned Addl. Sessions Judge, Biloli, in Special CaseNo.54 of 2014. Vide the impugned order, the appellant in CriminalAppeal No.132 of 2022 – Sunilkumar s/o. Adiklal Mandal has beenconvicted for the offence punishable under Section 302 r/w. 34 ofIndian Penal Code and therefore, sentenced to suffer rigorousimprisonment for life; while, the appellant in Criminal Appeal No.508of 2016 has been convicted for the offence punishable under Section201 of Indian Penal Code and sentenced to suffer R.I. for three years.2.The facts, giving rise to the present appeals, are asunder:-Sk. Riyaz (deceased) was son of appellant – Suhanabee.It is the case of prosecution that appellant – Suhanabee did haveextra-marital relationship with appellant – Sunilkumar. On the givenday, i.e. on 27.05.2014 by 6.00 p.m., both the appellants along withRubina (PW 5), daughter of appellant – Suhanabee, were working inthe field. Sk. Riyaz (deceased) came there. A petty quarrel ensuedbetween the two since Riyaz questioned him how come he (appellant– Sunilkumar) entered his field. The appellant – Sunilkumar, 3Cri Appeal Nos.132.22 and 508.16thereupon, picked up a spade and inflicted number of blows on thehead of Riyaz. Riyaz succumbed thereto.3.Appellant – Suhanabee informed everyone that her sondied on account of fall from a bicycle. She even went to the policestation and made a report accordingly. When there was an eye-witness account and the post mortem examination indicated Riyazmet with homicidal death, appellant – Suhanabee gave falseinformation about the said offence, which she knew to be false, withintention to screen the offender (appellant Sunilkumar) from legalpunishment.4.PW 1 – Sk. Ismail lodged First Information Report (Exh.15)based on which, crime C.R. No.23 of 2014 was registered. Theappellants were arrested. The investigation of the crime was made.On completion thereof, charge sheet was filed against both theappellants. The trial Court framed Charge (Exh.4). The prosecutionto establish the guilt, examined seventeen witnesses and producedin evidence certain documents. On appreciation of the same, thetrial court passed the order impugned herein.5.Heard learned counsel for the parties. Learned counselfor the appellant – Sunilkumar would submit that the case is based 4Cri Appeal Nos.132.22 and 508.16on the evidence of an eye-witness namely, PW 5 – Rubina. She wasjust 11 years of age at the relevant time. He took us through hercross-examination to submit her to be unreliable. Learned counselthen referred to an alleged confessional statement made byappellant - Sunilkumar in the presence of panch witness. He took usthrough the same and submitted that the deceased had abused theappellant – Sunilkumar in such words, which caused grave andsudden provocation, and as a result of which the appellant –Sunilkumar assaulted the deceased. He also brought to our noticethat it was the deceased who had, first, assaulted appellant –Sunilkumar with stone. The arrest panchnama of the appellant –Sunilkumar was brought to our notice to indicate the injuries on hisperson. According to learned counsel, appellant – Sunilkumar hasbeen behind the bars for little over 10 years. He would submit that itwould be, in any case, not an offence under Section 302 of IndianPenal Code. He, ultimately, urged for allowing the appeal in toto orat least, in the alternative, converting the offence under Section 302to Section 304 of Indian Penal Code.6.Learned counsel representing appellant – Suhanabeewould submit that the deceased was proceeding on a bicycle. Therewas nothing at all to indicate the illicit relationship between the 5Cri Appeal Nos.132.22 and 508.16appellants. The appellant – Suhanabee had, therefore, no reason tomake a false statement. He took us through the evidence of therelevant witnesses, namely PW 13 – Raosaheb and PW 14 - Sudhakarand submitted that PW 13 – Raosaheb did not tell PW 14 – Sudhakarwhat the appellant – Suhanabee had stated to him. According tohim, what has been stated by PW 13 – Raosaheb in his evidenceabout the deceased Riyaz to have suffered injuries due to fall frombicycle, was not put to her in her cross-examination under Section313 of the Code of Criminal Procedure. He referred to questionno.15. According to him, whatever PW 13 has testified againstappellant – Suhanabee, therefore, could not be read in evidenceagainst her. He further submitted that appellant – Suhanabee hasbeen leading happy married life with her husband.7.Considered the submissions advanced. Perused theevidence on record and the judgment impugned herein as well.8.Let us advert to the evidence on record and appreciatethe same. PW 17 – Dr. Pushpak conducted autopsy on the mortalremains of Sk. Riyaz. His evidence indicates him to have noticed thefollowing injuries on the person of Sk. Riyaz:- 6Cri Appeal Nos.132.22 and 508.161.Incised vertical wound over left forehead from inner sideof left eye brow to scalp 3x0.5x1 cm due to hard and sharpobject.2.Lacerated incised wound on vertex with fracture of scullabout 3x1x1 cm due to hard and blunt object.3.Lacerated wound on left side of scalp near temporalregion about 3x1x1 cm due to hard and sharp with fracture ofbone.4.Lacerated wound behind left ear on left occipital boneabout 2x2x1 cm with fracture of bone.5.Abrasion marks in mid-axillary line left side of chest 1x1cm due to hard object. In his opinion, Riyaz died of hemorrhagic shock due to multiple headinjuries. Although the viscera was preserved, nothing poisonous wasfound. As such, the cause of death of Riyaz opined by PW 17 –Pushpak has been duly proved. More so, he has categorically ruledout that injury nos.1 and 2 on the person of Sk. Riyaz (deceased)were possible due to fall from bicycle, on a stony surface.9.PW 1 - Sk. Ismail is brother-in-law (brother ofSuhanabee’s husband). It is he who lodged the F.I.R. (Exh.15).Admittedly, he had not witnessed the incident. He was, however,categorical to state that when he inquired with appellant –Suhanabee as to how did Riyaz suffered injuries, she informed him 7Cri Appeal Nos.132.22 and 508.16Riyaz fell off bicycle and suffered injuries thereby. During his cross-examination, he was categorical to state to have hearsay informationas regards illicit relationship between the appellants. 10.PW 2 to PW 4 are witnesses as regards spot panchnama(Exh.17), inquest panchnama (Exh.19) and the seizure panchnama ofclothes of the deceased (Exh.21). Since their evidence is of littleconsequence to further the case of prosecution, we do not proposeto refer the same. 11.PW 5 – Rubina (daughter of appellant - Suhanabee) wasabout 11 years of age at the relevant time. The trial court did notfind her to be not competent witness. It is in her evidence that aboutfour days excluding the day of the incident, she along with appellant– Suhanabee (mother) and the appellant – Sunilkumar were engagedin the work of making water-channel in their field. Her evidencefurther suggests that on the given day, they went to the field by12.00 noon and took lunch by 02.00 p.m. and again resumed thework. She further testified that her brother – Riyaz came to the field.It was 05.00 p.m. He (Riyaz) abused the appellant – Sunilkumar andquestioned him, as to why did he come to his field. The appellantreplied him to have come for the work. Riyaz, thereafter, proceededtowards the field of his maternal uncle. The appellant took up a
Legal Reasoning
9Cri Appeal Nos.132.22 and 508.16incident with anyone else who were present in the house. This doesnot rule out her evidence about having informed Raosaheb. Sheadmitted that there was quarrel between her mother (appellant –Suhanabee) and the deceased - Riyaz. To one of the questions, shetestified that Riyaz fell off bicycle in the Nalah (water-channel) in thefield of Bambaiwala. In our view, this is a stray admission having nobearing on the fate of the appeal, more so, when she again deniedthat when Riyaz was proceeding towards his house in anger, he fellin the stream and sustain injuries. She denied to have had reachedat the crime scene after 20 minutes. PW 5 – Rubina is the only eyewitness to the incident. She was 11 years of age. For appreciationof her evidence, we have no reason to discard her evidence, moreso, when the medical evidence rules out accidental death.13.PW 7 - Uttam and PW 8 – Kamaji were witnesses to theso called disclosure statement made by appellant – Sunilkumar(Exh.29), pursuant to which a spade came to be recovered. The spotpanchnama indicates that the spade was lying at the spot as it is.Admittedly, the seized spade was not sent to the F.S.L. to find,whether there were stains of blood on it. The seizure of the spade,therefore, has no relevancy. We have also closely perused theevidence of PW 9 – Ramrao and PW 10 – Aminabee to find the same 10Cri Appeal Nos.132.22 and 508.16to have no much relevance. Their evidence as regards illicitrelationship between the appellant was hearsay. PW 10 – Aminabeeis sister-in-law of the appellant - Suhanabee. She claimed to havelearnt about the incident from Rubina (PW 5). As such, her evidencetoo is of little help for the prosecution. Same is the case aboutPW 11 – Banubee. Her evidence indicates that she was a chicken-vendor. According to her, acquaintance between both appellantsdeveloped when they used to visit her shop. She, therefore, askedboth of them not to visit her shop. Thus, her evidence too is of littleconsequence to bring home the charge. PW 12 – Dashrath was adriver by profession. It is in his evidence that Riyaz was being takento Nanded in his vehicle. During transit, he inquired with theappellant – Suhanabee as to how did Riyaz suffered injuries. Shetold him Riyaz to have fallen off a bicycle and sustained injuries.This witness was not cross-examined on behalf of appellant –Suhanabee. As such, his evidence went unchallenged.14.PW 13 - Raosaheb testified that he was in his field at thematerial time. The daughter of Sattar, i.e. Rubina (PW 5), had cometo him running. She would call him `Mama’. She told him that`Bihari’ (appellant) beat her brother – Riyaz. He immediately rushedtowards the place of incident. On inquiry with Suhanabee (appellant), 11Cri Appeal Nos.132.22 and 508.16she told him Riyaz to have fallen off bicycle and suffered injuries.She even requested him not to beat up appellant – Sunilkumar. True,whatever this witness has testified against the appellant –Suhanabee, was not put to her during her examination under Section313 of the Code of Criminal Procedure. Same, therefore, cannot beused against her. So far as appellant – Sunilkumar is concerned, hisevidence reinforces the evidence of PW 5 – Rubina. Her (Rubina)conduct immediately approaching him and narrating about theincident is admissible as res gestae under Section 6 of the EvidenceAct.15.It is in the evidence of PW 14 – Sudhakar that he hadbeen to the field of Shriniwas Sawkar. PW 13 – Raosaheb waspresent there. Rubina (PW 5) came running and informed them aboutthe incident, i.e. the appellant assaulted her brother with spade. Hisevidence further disclosed that both of them, therefore, went to thespot. The appellant – Suhanabee was there. She told Raosaheb thatRiyaz suffered injuries due to fall off a bicycle. In question no.16 inthe examination under Section 313 of Cr.P.C., it was specifically putto appellant – Suhanabee that she told Raosaheb (PW 13) in his(Sudhakar) presence that Riyaz suffered injuries on account of fallingfrom bicycle. 12Cri Appeal Nos.132.22 and 508.1616.PW 16 – Santosh was A.P.I., attached to Kuntur PoliceStation. According to him, an information was received at the policestation that one boy died in suspicions circumstances, at villageKahala. He, therefore, went to the village to make enquiry. He thenreceived a phone-call, informing appellant – Suhanabee to havecome to the police station to inform her son to have died due to hisfalling off the bicycle. This evidence is hearsay. The police stationofficer, who had recorded the information given by appellant –Suhanabee, has not been examined nor a station-diary entry to thateffect has been placed on record.PW 13 – Raosaheb Kadam is thewitness in whose presence, the Investigating Officer recorded thestatement given by the appellant - Suhanabee. 17.We are conscious of the legal provision that in view ofSection 25 of the Evidence Act, no confession made to a policeofficer shall be proved as against a person accused of any offence.The Statement (Exh.26) made by the appellant – Sunilkumar in thepresence of PW 6, although in confessional nature, is not to be usedagainst him. We do not see any legal bar to use it in favour of theappellant. The appellant, in his statement, stated as under:-जब मै अय, रि(cid:9)याझ मुझे देखा तो मे(cid:9)ेकु गली दिदया. तू मे(cid:9)ी मा का धगडहै क्या ? तू मे(cid:9)ी मा को चोद (cid:9)हा है क्या ? तुम्हा(cid:9)ी मा को चोदूंगा तोकैसा लगेगा ? वैसे बाता क(cid:9) (cid:9)हा था| मै बोला के अ(cid:9)े तुम्हा(cid:9)ी माँको 13Cri Appeal Nos.132.22 and 508.16कौन चोद (cid:9)हा है, ऐसे बाता क(cid:9) (cid:9)हा है| उसने पथ(cid:9) उठाया| मै भी दोपथ(cid:9) उठाया| औ भी दो पथ(cid:9) उठाया औ फेक दिदया तो मै भी फेकदिदया| ओ अपने माको गाली देने लगा तुमको घ(cid:9) आने नही दूंगा चलोकैसे आती तुम घ(cid:9) को? दिफ(cid:9) बोला दिक मै अपने दिपताजी को फोन क(cid:9)के बोल देता| मे(cid:9)े को दा(cid:9) लगा ये ऐसी बाता क(cid:9) (cid:9)हा है | अग(cid:9) उसकोघ(cid:9) से दिनकाल देता तो मे(cid:9)ेकु टेन्शन आ गया मै उसके आमी को बोलामै समाजाता हू उसको जाके तो मै गया| मे(cid:9)े हाता मे फावडा था| दू(cid:9) सेमै चिचलाया `रि(cid:9)याज तुम्हा(cid:9)ी आमी बुला(cid:9)ही है' ऐसे बोला उसको वोसायकल से जा (cid:9)हा था | वो सायकल से उत्त(cid:9) औ(cid:9) दिपछे मूडा मे(cid:9)े कोदेखा औ(cid:9) बोला तू मे(cid:9)ेसे क्यू बात क(cid:9) (cid:9)हा है ? उसने पथ(cid:9) उठाया औ(cid:9)उसने मे(cid:9)ेको याह पे (बगलेच्या खाली हाताने इशा(cid:9)ा करून दाखवले)मा(cid:9)ा| तो मे(cid:9)े हात मे फावडा था मै भी फावडासे दो मा(cid:9)ा उसको माथे पेमा(cid:9)ा तो वो बेहोष हो गया| मै पाणी लाने को गया औ(cid:9) ट्रॅकट(cid:9) कोबुलाया| ………………………..Appellant – Sunilkumar:-18.PW 5 – Rubina testified that her brother (deceased Riyaz)abused appellant Sunilkumar. Abusing by deceased Riyaz, triggeredthe incident. The arrest panchnama of the appellant – Sunilkumaron record, would indicate him to have suffered blunt trauma on rightcheek, left sole and injury just below the right arm-pit. Samereinforces that it was the deceased Riyaz, who abused the appellantfirst, and even assaulted him and thereafter only, the appellant –Sunilkumar assaulted on the head of deceased Riyaz by a spade,which was readily available there as an agricultural instrument.True, number of blows given on the deceased indicate that theappellant had intended to do him away. Same suggests intention of 14Cri Appeal Nos.132.22 and 508.16the appellant. However, his case would fall within the Exceptions 1and 4 of Section 300 of Indian Penal Code. For ready reference, boththe Exceptions are reproduced below:-Exception 1.— When culpable homicide is not murder. —Culpable homicide is not murder if the offender, whilstdeprived of the power of self-control by grave and suddenprovocation, causes the death of the person who gave theprovocation or causes the death of any other person bymistake or accident. The above exception is subject to the followingprovisos:—First - That the provocation is not sought or voluntarilyprovoked by the offender as an excuse for killing or doingharm to any person.Secondly — That the provocation is not given by anythingdone in obedience to the law, or by a public servant in thelawful exercise of the powers of such public servant.Thirdly — That the provocation is not given by anythingdone in the lawful exercise of the right of private defence.Exception 2. - …..Exception 3.-…..Exception 4.- Culpable homicide is not murder if it iscommitted without premeditation in a sudden fight in theheat of passion upon a sudden quarrel and without theoffender having taken undue advantage or acted in a cruelor unusual manner.Exception 5.-…..19.In case of Dauvaram Nirmalkar Vs. State ofChhattisgarh (2022 LiveLaw (SC) 650, the Apex Courtobserved :- 15Cri Appeal Nos.132.22 and 508.16“10. Interpreting Exception 1 to the Section300 in K.M. Nanavati v. State of Maharashtra,(1962 Supp (1) SCR 567, this Court has held thatthe conditions which have to be satisfied for theexception to be invoked are (a) the deceasedmust have given provocation to the accused; (b)the provocation must be grave; (c) theprovocation must be sudden; (d) the offender, bythe reason of the said provocation, should havebeen deprived of his power of self-control; (e) theoffender should have killed the deceased duringthe continuance of the deprivation of power ofself-control; and (f) the offender must havecaused the death of the person who gave theprovocation or the death of any other person bymistake or accident. For determining whether ornot the provocation had temporarily deprived theoffender from the power of self-control, the testto be applied is that of a reasonable man and notthat of an unusually excitable and pugnaciousindividual. Further, it must be consideredwhether there was sufficient interval and time toallow the passion to cool. K.M. Nanavati (supra)succinctly observes: “84. Is there any standard of a reasonableman for the application of the doctrine of“grave and sudden” provocation? Noabstract standard of reasonableness can belaid down. What a reasonable man will doin certain circumstances depends upon thecustoms, manners, way of life, traditionalvalues etc.; in short, the cultural, socialand emotional background of the societyto which an accused belongs. In our vastcountry there are social groups rangingfrom the lowest to the highest state ofcivilization. It is neither possible nordesirable to lay down any standard withprecision: it is for the court to decide ineach case, having regard to the relevantcircumstances. It is not necessary in thiscase to ascertain whether a reasonableman placed in the position of the accusedwould have lost his self-controlmomentarily or even temporarily when his 16Cri Appeal Nos.132.22 and 508.16wife confessed to him of her illicitintimacy with another, for we are satisfiedon the evidence that the accused regainedhis self-control and killed Ahujadeliberately.85. The Indian law, relevant to the presentenquiry, may be stated thus: (1) The testof “grave and sudden” provocation iswhether a reasonable man, belonging tothe same class of society as the accused,placed in the situation in which theaccused was placed would be so provokedas to lose his self-control. (2) In India,words and gestures may also, undercertain circumstances, cause grave andsudden provocation to an accused so as tobring his act within the First Exception toSection 300 of the Indian Penal Code. (3)The mental background created by theprevious act of the victim may be takeninto consideration in ascertaining whetherthe subsequent act caused grave andsudden provocation for committing theoffence. (4) The fatal blow should beclearly traced to the influence of passionarising from that provocation and notafter the passion had cooled down bylapse of time, or otherwise giving roomand scope for premeditation andcalculation.”11. K.M. Nanavati (supra), has held that themental background created by the previous act(s)of the deceased may be taken into considerationin ascertaining whether the subsequent actcaused sudden and grave provocation forcommitting the offence. There can be sustainedand continuous provocations over a period oftime, albeit in such cases Exception 1 to Section300 of the IPC applies when preceding theoffence, there was a last act, word or gesture inthe series of incidents comprising of that conduct,amounting to sudden provocation sufficient forreactive loss of self-control. K.M. Nanavati(supra) quotes the definition of ‘provocation’ 17Cri Appeal Nos.132.22 and 508.16given by Goddard, C.J.; in R. v. Duffy, (1949) 1All E.R. 932, as :“...some act or series of acts, done by thedead man to the accused which wouldcause in any reasonable person, andactually causes in the accused, a suddenand temporary loss of self-control,rendering the accused so subject topassion as to make him or her for themoment not master of his own mind…Indeed, circumstances which induce adesire for revenge are inconsistent withprovocation, since the consciousformulation of a desire for revenge meansthat the person had the time to think, toreflect, and that would negative a suddentemporary loss of self-control which is ofthe essence of provocation...”. 12. The question of loss of self-control bygrave and sudden provocation is a question offact. Act of provocation and loss of self-control,must be actual and reasonable. The law attachesgreat importance to two things when defence ofprovocation is taken under Exception 1 to Section300 of the IPC. First, whether there was anintervening period for the passion to cool and forthe accused to regain dominance and control overhis mind. Secondly, the mode of resentmentshould bear some relationship to the sort ofprovocation that has been given. The retaliationshould be proportionate to the provocation. (RV.Duffy). The first part lays emphasis on whetherthe accused acting as a reasonable man had timeto reflect and cool down. The offender ispresumed to possess the general power of self-control of an ordinary or reasonable man,belonging to the same class of society as theaccused, placed in the same situation in whichthe accused is placed, to temporarily lose thepower of self-control. The second part emphasisesthat the offender’s reaction to the provocation isto be judged on the basis of whether theprovocation was sufficient to bring about a loss ofself-control in the fact situation. Here again, the 18Cri Appeal Nos.132.22 and 508.16court would have to apply the test of a reasonableperson in the circumstances. While examiningthese questions, we should not be short-sighted,and must take into account the whole of theevents, including the events on the day of thefatality, as these are relevant for deciding whetherthe accused was acting under the cumulative andcontinuing stress of provocation. Gravity ofprovocation turns upon the whole of the victim’sabusive behaviour towards the accused. Gravitydoes not hinge upon a single or last act ofprovocation deemed sufficient by itself to triggerthe punitive action. Last provocation has to beconsidered in light of the previous provocativeacts or words, serious enough to cause theaccused to lose his self-control. The cumulative orsustained provocation test would be satisfiedwhen the accused’s retaliation was immediatelypreceded and precipitated by some sort ofprovocative conduct, which would satisfy therequirement of sudden or immediate provocation.13.Thus, the gravity of the provocation can beassessed by taking into account the history of the abuseand need not be confined to the gravity of the finalprovocative act in the form of acts, words or gestures.The final wrongdoing, triggering off the accused’sreaction, should be identified to show that there wastemporary loss of self-control and the accused had actedwithout planning and premeditation. This has been aptlysummarised by Ashworth (1975 Criminal LR 558-559) inthe following words:“The significance of the deceased’s final actshould be considered by reference to the previousrelations between the parties, taking into accountany previous incidents which add colour to thefinal act. This is not to argue that the basicdistinction between sudden provoked killings andrevenge killings should be blurred, for the lapseof time between the deceased’s final act and theaccused’s retaliation should continue to tellagainst him. The point is that the significance ofthe deceased’s final act and its effect upon theaccused – and indeed the relation of theretaliation to that act – can be neither understood 19Cri Appeal Nos.132.22 and 508.16nor evaluated without reference to previousdealings between the parties.” Exception 1 toSection 300 recognises that when a reasonableperson is tormented continuously, he may, at onepoint of time, erupt and reach a break pointwhereby losing self-control, going astray andcommitting the offence. However, sustainedprovocation principle does not do away with therequirement of immediate or the final provocativeact, words or gesture, which should be verifiable.Further, this defence would not be available ifthere is evidence of reflection or planning as theymirror exercise of calculation and premeditation.14. Following the view expressed in K.M. Nanavati(supra), this Court in Budhi Singh v. State of HimachalPradesh (2012) 13 SCC 663, observed that in the test forapplication of Exception 1 to Section 300 of the IPC, theprimary obligation of the court is to examine thecircumstances from the point of view of a person ofreasonable prudence, if there was such grave and suddenprovocation, as to reasonably conclude that a personplaced in such circumstances can temporarily lose self-control and commit the offence in the proximity to thetime of provocation. A significant observation in BudhiSingh (supra) is that the provocation may be an act orseries of acts done by the deceased to the accusedresulting in inflicting of the injury. The idea behind thisexception is to exclude the acts of violence which arepremeditated, and not to deny consideration ofcircumstances such as prior animosity between thedeceased and the accused, arising as a result of incidentsin the past and subsequently resulting in sudden andgrave provocation. In support of the aforesaidproposition and to convert the conviction from Section302 to Section 304 Part I of the IPC in Budhi Singh(supra), the Court also relied upon Rampal Singh v. Stateof Uttar Pradesh (2012) 8 SCC 289.15. For clarity, it must be stated that the prosecutionmust prove the guilt of the accused, that is, it mustestablish all ingredients of the offence with which theaccused is charged, but this burden should not be mixedwith the burden on the accused of proving that the casefalls within an exception. However, to discharge thisburden the accused may rely upon the case of the 20Cri Appeal Nos.132.22 and 508.16prosecution and the evidence adduced by theprosecution in the court. It is in this context we wouldrefer to the case of the prosecution, which is that thedeceased was addicted to alcohol and used to constantlytorment, abuse and threaten the appellant. On the nightof the occurrence, the deceased had consumed alcoholand had told the appellant to leave the house and if not,he would kill the appellant. There was sudden loss ofself-control on account of a ‘slow burn’ reaction followedby the final and immediate provocation. There wastemporary loss of self-control as the appellant had triedto kill himself by holding live electrical wires. Therefore,we hold that the acts of provocation on the basis ofwhich the appellant caused the death of his brother,Dashrath Nirmalkar, were both sudden and grave andthat there was loss of self-control.”20.For all the above reasons, as regards the appellant –Sunilkumar, we find it to be a case of culpable homicide notamounting to murder, punishable under Section 304 Part II of IndianPenal Code. The appellant – Sunilkumar was behind the bars fromthe day one of his arrest, i.e. from 28.05.2014 till the day this Courtreleased him on P.R. Bond vide order dated 01.10.2024. As such, hewas behind the bars little over 10 years. In our view, he needs to bereleased with the period of sentence he has already undergone.Appellant – Suhanabee :-21.As already observed above, the evidence on recordindicates that the appellant – Suhanabee, inspite of having been inthe know that her son – Riyaz to have been assaulted by the 21Cri Appeal Nos.132.22 and 508.16appellant – Sunilkumar and he (Riyaz) thereby died, still, only with aview to screen him from the legal punishment, she informed her sonto have suffered injuries due to fall from a bicycle. The trial courthas convicted her for the offence under Section 201 of Indian PenalCode. For better appreciation, the provisions of Section 201 arereproduced below:-201. Causing disappearance of evidence of offence, or givingfalse information to screen offender —Whoever, knowing or having reason to believe that an offencehas been committed, causes any evidence of the commission ofthat offence to disappear, with the intention of screening theoffender from legal punishment, or with that intention gives anyinformation respecting the offence which he knows or believes tobe false;If a capital offence.—shall, if the offence which he knows orbelieves to have been committed is punishable with death, bepunished with imprisonment of either description for a termwhich may extend to seven years, and shall also be liable to fine;If punishable with imprisonment for life.—and if the offence ispunishable with imprisonment for life, or with imprisonmentwhich may extend to ten years, shall be punished withimprisonment of either description for a term which may extendto three years, and shall also be liable to fine;If punishable with less than ten years’ imprisonment.—and if theoffence is punishable with imprisonment for any term notextending to ten years, shall be punished with imprisonment ofthe description provided for the offence, for a term which mayextend to one-fourth part of the longest term of theimprisonment provided for the offence, or with fine, or withboth. 22Cri Appeal Nos.132.22 and 508.16Reading of the first part of Section 201 of Indian Penal Code wouldindicate that it is applicable in the case of an offence which isexclusively punishable with death sentence. Same is, therefore, notapplicable here. We have converted the conviction of appellant –Sunilkumar from offence punishable under Section 302 of I.P.C. intothe offence punishable under Section 304 Part I of I.P.C., whichprescribes punishment with life imprisonment or imprisonment ofeither description for a term, which may extend to 10 years and shallalso be liable to fine. The second part of Section 201 of Indian PenalCode provides maximum punishment of imprisonment for a term,which may extend to three years and shall also be liable to fine.Considering the fact that the appellant – Suhanabee is a woman andwas behind the bars for 137 days during investigation, enquiry andtrial, we propose to impose sentence against her to the period ofimprisonment, which she has already undergone; more so, when sheis leading happy married life and sending her back to jail may createtrouble in her matrimonial life.22.With the aforesaid observations, both the appeals arepartly allowed in terms of the following order:-(i)The impugned order dated 12.07.2016, passed bylearned Addl. Sessions Judge, Biloli, in Special Case No.54 of 2014, 23Cri Appeal Nos.132.22 and 508.16convicting and sentencing the appellant in Criminal AppealNo.132 of 2022 - Sunilkumar s/o. Adiklal Mandal for the offencepunishable under Section 302 r/w. 34 of Indian Penal Code, is setaside. The appellant is acquitted thereof.Instead, he is convicted for the offence punishable underSection 304, Part I of Indian Penal Code and sentenced to suffer R.I.for 10 years and to pay fine of Rs.1,000/-.(ii)Appellant – Sunilkumar has already been released on hisexecuting P.R. Bond, vide order of this Court dated 01.10.2024. TheP.R. Bond executed by him shall stand cancelled.(iii)The conviction of the appellant in Criminal AppealNo.508 of 2016 - Suhanabee w/o. Sk. Sattar, vide impugnedorder dated 12.07.2016, passed by learned Addl. Sessions Judge,Biloli, in Special Case No.54 of 2014, for the offence punishableunder Section 201 r/w. 34 of Indian Penal Code, is maintained.However, the sentence of imprisonment imposed against her ishereby modified to the extent of the period of 137 days, which shehas already undergone. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]KBP
Arguments
8Cri Appeal Nos.132.22 and 508.16spade and followed Riyaz. The appellant then assaulted on his(Riyaz) head with spade near the field of one Bambaiwala. Accordingto her, one Shriniwas Sawkar and Raosaheb mama were present inthe field of Shriniwas Sawkar. She immediately approached themand told about the incident. Raosaheb (PW 13) came to the spot.Shriniwas Sawkar also came. Riyaz was taken in a tractor for beingtaken to hospital. On way, one Pappu came with an auto-rickshaw.Then, they shifted Riyaz from tractor to the auto-rickshaw andbrought him to the hospital. The Doctor examined him and advisedto shift to Hyderabad. Riyaz was, therefore, being taken to Nanded.Unfortunately, he died on the way. 12.During the cross-examination of PW 5 – Rubina, it hasbeen brought on record that her statement was recorded two daysafter the incident. It was also brought on record that her mother(appellant - Suhanabee) used to be always in the company of eitherRiyaz or herself. According to her, she had never seen the appellant– Sunilkumar in her house. She further testified that he (Sunilkumar)was friend of Riyaz. It was suggested to this witness that when herbrother was brought to the Chowk (square), their relatives hadgathered there. Same suggests the defence to have admitted herpresence from the field to the Chowk (square). What she hasadmitted in cross-examination was that she did not share the