1,, i iiiiir¥‘ii i INll|I|H|||Nllll||||||||||NIH ‘@ “kmgg/(Jaio CJ .P.R.-5,000~9-8l ‘ CF000005901 6 AP.“ a? Pimgwm M i&&i Name —¢§m3f”%§?7’? Father’s name fm‘wgdgl r :3? Res§dex1cé—@w@WV—@ I fAge —«_r§é@r ‘ g ~ SEntenCEd 10mWW~6n ~5biyl£ui // f I . 1 Under 3wm l by —§%—w%*gwmmww¢?w \yma h 1g > if he states or wishes to be Iepmsemed ‘m a legm he base for seven d: Ugs‘ z'i at ‘L will not pracaed with t ractitioner the Appelaie Co If the legal practitioner doss not Cs, 3 nN wish EO a n d ‘gt is explainad to (he prism tha in be seven represented legzu days practiiioner he by‘hegtxl may not practiiioner appeai‘s. be heard at the all court If tha may prisoner proceed statss at once that he wigh do the willinot be obliged to give a hearing to any legal practitioner who should app .99? Date of which copy receivegl 3—5 E g} IQLJQ ‘ ‘3 LVI i Date of Applieation for copy of‘Judgement Yes/No, Date on which Appeal sent wishes to be represented orinot f» 4 Whether the prisoner ”x No Jw Nanie~e$j§%s1%?ga‘h / Continued 1n W J3.)LQ—~~-dated—mi&—‘WJ‘L¥ L111 wgu< WY. 198 No Forwarded to the CHIEF JUDICIAL MAGISTRATE W y at judgement or order passed in the c se for favour cl‘ to gather with a cop Court. _ Q ,M’) z transmission to the proper Appilliate trali‘Dist t-‘odnil- nM Superinten‘é Date of receipt in C. Ji M.’S Office Date of receipt of record to accompany Memo of Appeal of the Appellate Court. NO..C(¥ ~ i _~_L_.‘LELHH\9O‘J ’ v 4 Wéted H§gl§$J£Lb>L Forwarded to the lla C! Date of receint in Appliate Com i R z l‘n p »: p s L : w HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Appeal No. 1167/ 1991 ; Kornalius Vs. State of Madhya Pradesh (now Chhattisgarh) man coum: or cmmlscmm AI mmsmm m. A22ega No; 1167(1991 ‘9 Kornalius Vs. State of Madhya Pradesh (now Chhattisgarh) m CORAM : HON’BLE SHR! FAKHRUDDIN, V ‘ u 3 HON’BLE SHRI D.R.DE8HMUKH, J.J. J" Shri Sandfp Shriv‘astava appeared as amicum curiae on behalf of the accused appellant. Shri U.N.S. Deo, Govt. Advocate for the State. JUDGMENT [Delivered onz5-07-2005) Per Ding Raosaheb Deshmukh. J. my 1. This jail appeal is directed against the judgment dated 30—09-1991 demered by Shri SEK.Gupta¢, Additional Sessions Judge, \Jashpur Nagar, District—Raigarh in Sessions Trial No. 77—1991 whereby the appellant was convicted under section—302 of the I.P.C. for committing murder of his father Siril Ekka and was sentenoed to imprisonment for life. ix 2. Admittedly, the deceased Siril Ekka was the father, Mst.Kurdula PW-2 the sister—in—law, Antonius Ekka PW— 1 the brother and Mary Kumari PW—3 the sister of the appellant. 3\ Briefly stated the prosecution ca$e is that on 16-02— 1991, a quarrel ensued between Siril Ekka an& the appellant in their house whereupon the accused appellant dealt Tangia blows on the head and cheek of Siril Ekka. Siril Ekka succumbed to the injuries on the spot. When Mary Kumari PW-3 arrived at the spot, the appellant told her that he was starving for the last 3 days“ and while he was having food, his father kicked him twice, as a result of which he picked up the axe and assaulted his father. The accused appellant also made an extra judicial confession before Mst. Kurdula PW-2. .-\ Antonius Ekka PW—l, who saw the dead body of his father and the appellant standing outside the house, lodged the F.I.R. vide Ex.P—1in Police Station—Kunkuri on the salne day at 4.10 P.M. Investigating Officer M.B.Pandey PW-7 reached the spot on the same day and prepared panchnama of the dead body of the deceased vide EXP—5. Dr. S.B.Jain PW—8 who conducted the autopsy found fracture of Right frontal bone 5” in semi circular shape and another fracture of Right Maxilla with Haematoma and laceration of brain matter below the fracture of bone. He opined that the cause of death of deceased Siril Ekka was hemorrhagic shock due to ' fracture of skull and maxilla. In his opinion, gie death was homicidal. During investigation, at the instance of the appellant vide memorandum EXP—6, one Tangia was seized from the spot vide Ex. P—7, plain soil and blood stained soil were seized vide EXP—8. Tangia seized at the instance of the accused appellant was sent for medical examination; Dr. Jain, PW—8 opined that the injuries sustained by Siril Ekka could be caused by this weapon. After completion of investigation, the accueed «Eavas prosecuted for committing the murder of Siril Ekka under section-302 of I.P.C. The accused appellant abjured his guilt, pleaded innocence in defence and led no evidence. The proseeution examined as many as 9 Witnesses in support of its case. The learned Trial Judge relying upon the testii'nony of‘Maly Kumari PW—3 and Mst. Kurdula PW—2 relating to .extra judicial confession made by the accused appellant and the evidence of Investigating Officer M.B.Pandey PW—7 regarding seizure of Tangia at ‘_ the instance of the accused appellant convicted the accused appellant for committing murder of Siril Ekka under section-302 of the I.P.C. and sentenced him as shown above in Para-1. 6. Shri Sandeep Shirvastava, Counsel appearing as amicus X v curiae on behalf of the accused appellant has mainly contended that the testirnony of Mst. Kurdula PW—2 and Mary Kumari PW—3 relating to extra judicial confession made by the accused appellant has to be read as a whole and when so read, it clearly spells out that the accused appellant while being deprived of the power of self control by gave and sudden provocation had caused the death of his father Siril Ekka, who gave the provocation and therefore the offence if any committed by the appellant does not travel beyond section—304 (Part-II) of the I.P.C. On the other hand, Shri U.N.S.Deo, appearing for the State argued that the testimony of Mst. Kurdula a" l'wl V l A PW-2 and Mary Kumari PW—3 does not make out a case of grave and sudden provocation under excepu‘ori—I to section—300 of the I.P.C. The extra judicial confession made by the accused coupled with the injuries sustained by Siril Ekka, the weapon used and the vital part where injury was caused twice clearly made a case under section—302 of I.P.C. g " 7. We have considered the rival submissions and have also gone through the record. There is n0 eye—witness regarding the assault by the accused appellant by Tangia on his father. The prosecuu'on rests solely upon the testimony of Mst. Kurdula PW—2 and Mary Kumari PW-3 M before whom the accused appellant had made an exn'a judicial confession. Mary Kgmari PW—3, the real sister of the appellant has stated that upon being asked, the accused appellant had told her that he was starving for 3 days and when he sat for having food, his father kicked him twice whereupon he picked up the axe agrd assaulted his father on the head. _No question has been asked in cross—examination which would “render her testimony unworthy of credit. Mst. Kurdula PW-2,the sister—in-law of the appellant has also stated that on seeing her father-in—law lying in a pool of blood in the ' courtyard, she had asked the appellant who told her that a quarrel had ensued with his father while he was having his food wherein he had assaulted his father by Tangia resulting in his death. In cross examination, nothing has been elicited to discredit her. / 7// We have also gone through the evidence of Dr. S.B.Jain, » PW—8, who has proved the injuries sustained byethe deceased which leaves no manner of doubt that the deceased Sin] Ekka had died a homicidal death. We have perused the evidence led by the prosecution and find that the trial Court had, on the basis of extra judicial confession of the appellant rightly held that, it was prove‘d‘beyond the shadow of doubt that it was the accused appellant who had caused the death of Siril Ekka by assaulting him with a Tangia on the head and cheek’ 9. The only point which remains for our consideration is a to what offence has been committed by the accused. We have to examine Whether in the facts and circumstances of the case it could be said that the accused appellant While deprived of the power of self control upon gave and sudden provocation by his father had caused the death of Siril Ekka. It is settled law that whether the i provocation in a given case was grave and sudden in order to exclude the offence from amounting to murder U‘ is a question of fact. The testimony of Mary Kumari PW—3 shows beyond doubt that the accused had been starving for 3 days and when he sat for having food, his father had kicked him twice which infuriated the accused appellant to such an extent that he picked up an axe afid assaulted his father. In the case of K.M. Nanavati Vs. State of Maharashtra, reported in A.I.R.—1 962-SC-605 it has been held by the Hon’ble Apex Court that the test of “grave and sudden” provocation is whether a reasonable man belonging to the same class of society as s the accused, placed in the situation in which the accused was placed would be so provoked as to los”e his self control. In Akhtar Vs. State reported in A.I.R.-1 964-Allahabad — 263, it was observed as under z 3 In determining whether a person accused of homicide is entitled do the benefit of the doctrine of gratre and sudden provocation, the Courts in this countly must consider the following matters: firstly, What is put forward as a grave > and sudden prouocation given by the victim, by means of actions, conduct, words or gestures, must not only be sudden but also be capable of being considered grave, according to the norms or standards which govern the accused. These norms or standards represent ideas and sentiments about What is right and wrong. They may be the result of the membership of a particular social group such as a nation, a community, or even a family—or of the peculiar history and circumstances of the accused, determining the accused’s reactions towards the victim of a particular time. In every case, the test applied is an objective one in the sense that it must be capable of acceptance by reasonable men. The purely subjective or aberrant notions or outlook of the accused, even if due to his “constitutional” defects, over which he has no control, have to be disregarded. Secondly, the Court has to consider whether the accused acted normally or “reasonably, according to the standards and norms applicable to his youp, until he lost control over himself. If he himself acted improperly or unreasonably, so as to invite What is put forward as the provocau'on, he could not get the benefit of the doctrine. Thirdly, it has to be shown that the act causing death was committed after loss of self’controlbut before self—possession has had an opportunity to return. This can often be presumed from the existence of a grave provocation and the sudden and drastic character of the violent and hasty act immediately following the provocation, but facts and circumstances may sometimes exist which destroy the presumption and show that self- possessmn was not actually lost so that the accused could not get the beneft of the doctrine ‘ a 11. Beanng the above pnnc1ples 1n mmd we find that the fam1ly of the accused appellant belong to the “Gond” g commumty of D1stnct—Ra1garh and thnve on agnculture It ls also borne out that they are Vlllage folk Cons1denng the mental status of a person who has been starvmg for 3 days we find that the act of the deceased S1111 Ekka 1n k1ckmg the appellant tw1ce whde he was havmg food espec1ally when the appellant had been starvmg for 3 days, was of such a nature that 1t could have created a s1tuat10n 1n Whlch the already starved appellant was depnved of h1s power of self control and the act of h1s father annoyed hlm to such an extent that Wh11e bemg depnved of the power of self control he mthcted the fatal blows on h1s father. In the glven cmcumstances of the case, we find that the act of the accused appellant was upon grave and sudden provocation by the deceased When a person loses the self control under grave and sudden provocatlon, he loses all facultles of¢calculat10n and balance of nund and the Court would not weigh 1n golden scales as to how many blows would be sufficlent to convmce a Court that the act done by the accused was under grave and sudden provocanon and where he exceeded a partlcular number of blows, the act would be out of the category offgrav‘e and sudden” provocation. When one loses the mental faculty upon being gravely provoked one would not go on calculating the blows The act of Sml Ekka 1n the mstant case 1n glvmg two k1cks to the starved appellant Wh11e havmg food could be W7 . construed to be an act sufficient to provide grave and r sudden provocation to the appellant and thereforé the number of blows could never be material to consider the impact on the mind of the accused so as to take hixn out of the exception—I to section—300 of the I.P.C. Under the peculiar facts and circumstances of the case, we find that when the’starving accused appellant had ' been kicked twice by his father While he was eating his food, he lost his self control upon such grave and sudden provocation. In the facts and circumstances of the case it could be said that the accused appellant upon being provoked by Siril Ekka was deprived of the power of self control and caused the death of Siril Ekka. After carefully considering all the facts and circumstances of this case and nature of the society to which the accused appellant and the deceased belong and the mental status of the provoked person, we are convinced that the act of the accused appellant in causing the death of Siril Ekka clearly falls within the exception one to section-300 of the I.P.C. and aniounts to culpable homicide not u: amounting to murder. We are also convinced that the act of the accused appellant does not travel beyond section— 304—II of the I.P.C. Consequently, the appeal is partly allowed. The appellant is acquitted of the charge under section—302 of the I.P.C. Conviction of the accused appellant is altered to section- 304—11 of the I.P.C. We sentence him to imprisonment for 10 years. ”V 14. In the end, we appreciate the valuable assistance ' rendered by Shri Sandeep Shrivastava, who appearedyas amicus curiae on behalf of the accused appellant. Sdl— Dilip Raosaheb Deshmukh Judge l Judge :u 1-07—2005 zl -07-2005 u“ Sdl- Fakhruddin na.