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SUPREME COURT OF INDIA
SANJIV KHANNA, BELA M. TRIVEDI, JJ.
Dauvaram Nirmalkar - Appellant
Versus
State Of Chhattisgarh – Respondent
Criminal Appeal No. 1124 of 2022 (Arising Out Of Special Leave Petition (Criminal) No. 2481 of 2022)
Decided on : 02-08-2022.
(A) Indian Penal Code, 1860 – Section 300, Exception 4 – Culpable homicide not amounting to murder – 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 – Gravity of provocation can be assessed by taking into account history of abuse and need not be confined to gravity of final provocative act in form of acts, words or gestures – Final wrongdoing, triggering off accused’s reaction, should be identified to show that there was temporary loss of self-control and accused had acted without planning and premeditation – Gravity of provocation turns upon whole of victims abusive behaviour towards accused – Gravity does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger punitive action – Last provocation has to be considered in light of previous provocative acts or words, serious enough to cause accused to lose his self-control – Sustained provocation principle does not do away with requirement of immediate or final provocative act, words or gesture, which should be verifiable. (Paras 12 and 13)
(B) Indian Penal Code, 1860 – Section 302 – Murder of brother – Life sentence – On night of occurrence, deceased had consumed alcohol and had told appellant to leave house and if not, he would kill appellant – There was sudden loss of self-control on account of a ‘slow burn reaction followed by final and immediate provocation – There was temporary loss of self-control as appellant had tried to kill himself – Acts of provocation on the basis of which appellant caused death of his brother were both sudden and grave – Prosecution must establish all ingredients of offence with which accused is charged, but this burden should not be mixed with burden on accused of proving that case falls within an exception – However, to discharge this burden accused may rely upon case of prosecution and evidence adduced by prosecution in Court – Conviction of appellant converted from Section 302 to Part I of Section 304 of IPC and sentence reduced to period already undergone. (Paras 15, 16 and 17)
Facts of the case:
Appellant has been convicted under Section 302 of the Indian Penal Code, 1860, for the murder of his brother and sentenced to undergo imprisonment for life, pay fine of Rs.1,000/-, and in default, to undergo simple imprisonment for a period of six months.
Findings of Court:
Appellant has already suffered incarceration for over 10 years, as he has been in custody since 27th September, 2011. In the circumstances, Court is inclined to modify the sentence of imprisonment to the period already undergone. In addition, appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, appellant is directed to be released forthwith, if not required to be detained for any other case.
Result – Appeal Partly allowed.
JUDGMENT :
SANJIV KHANNA, J.
Leave granted.
2. The appellant, Dauvaram Nirmalkar, has been convicted under Section 302 of the Indian Penal Code, 1860, 1[For short, “IPC”.] for the murder of his brother, Dashrath Nirmalkar, and sentenced to undergo imprisonment for life, pay fine of Rs.1,000/-, and in default, to undergo simple imprisonment for a period of six months.
3. Dr. Nohar Prasad Jangde (PW-12), the senior medical officer at the Government District Hospital, Durg District – Durg, Chhattisgarh, has proved the post mortem report -Ex. P-18, and has testified that Dashrath Nirmalkar had died due to coma as a result of shock, in view of the injuries given on the scalp of his head, causing multiple fractures on the skull bone. Dashrath Nirmalkar suffered fractures in the left temporal, frontal, parietal, and left occipital lateral side with a deep lesion. A lacerated wound was also present on the chin. Homicidal death of Dashrath Nirmalkar is not disputed and challenged before us.
4. On the question of the involvement of the appellant as the perpetrator, we are in agreement with the High Court and the trial court. No doubt the public witnesses, Manoj Vishwakarma (PW-1) – a local teacher; Brijesh Sharma (PW-2) – a vegetable seller; Bhagwati Prasad Nirmalkar (PW-3) – younger brother of the appellant; Nakul Ram Sahu (PW-4) – neighbour of the appellant; Treveni Bai (PW-7) – sister of the appellant; Geeta Bai (PW-8) – sister-in-law of the appellant; Kumari Shanti Nirmalkar (PW-9) – niece of the appellant; Kumari Madhu Nirmalkar (PW-10) – niece of the appellant; and Kejauram Nirmalkar (PW-11) – half brother-in-law of the appellant had turned hostile, there is ample evidence and material implicating and establishing the appellant’s involvement beyond doubt.
5. On 26th September, 2011, the appellant himself went to the police station and confessed the crime, albeit, the confession is inadmissible as proof of confession is prohibited under Section 25 of the Indian Evidence Act, 18722[For short, “Evidence Act”.]. This Court in Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 has held that the confessional statement not only includes the admission of the offence, but all the other admissions of incriminating facts relating to the offence. The severability test which was applied by some of the High Courts to admit evidence, wherein each sentence is treated separately to admit the non-confessional part, was held to be misleading and consequently rejected. Thus, no part of a First Information Report lodged by an accused with the police as an implicatory statement can be admitted into evidence. However, the statement can be admitted to identify the accused as the maker of the report. Further, that part of the information in the statement, which is distinctly related to the ‘fact’ discovered in consequence of such information, can also be admitted into evidence under Section 27 of the Evidence Act, provided that the discovery of the fact must be in relation to a material object. 4[Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671.] We add that the conduct of the appellant is relevant and admissible under Section 8 of the Evidence Act.
6. In the present matter, on the disclosure made by the appellant, a pick-axe was seized from a wooden box kept in the house where the appellant used to reside vide Ex. P-1. The seized pick-axe and the shirt of the appellant, which he wore at the time of the incident, were found to be stained with blood. The disclosure made by the appellant also led to the discovery of the body of Dashrath Nirmalkar at the house where the appellant was residing.
7. It is an accepted position that the public witnesses, Manoj Vishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati Prasad Nirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai (PW-7), Geeta Bai (PW-8), Kumari Shanti Nirmalkar (PW-9), Kumari Madhu Nirmalkar (PW-10), and Kejauram Nirmalkar (PW-11), though declared hostile, have more or less in unison deposed that the a
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