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2000 DIGILAW 291 (KAR)

Ravi v. State of Karnataka

2000-04-03

M.F.SALDANHA, S.R.BANNURMATH

body2000
JUDGMENT M.F. Saldanha, J.—This Criminal Appeal involves a set of facts that are both unusual and unpalatable. It also involves an interesting facet of the law relating to provocation which we shall presently point out, which does not seem to have arisen before any of the Courts hereinbefore. The facts of the case are within a very narrow compass. The accused who was aged about 18 years at that time was a young man employed as a helper-cum- waiter in a small hotel by the name of "Shalini Darshan" situated in the suburbs of Bangalore. As is unfortunately the case, it was a small establishment employing a couple of youngsters and the deceased Nataraj who was aged about 60 years was the cook of the establishment. As is also customary, the youngsters who were employed there who included the accused, were young boys who had come from different places to try and earn their livelihood in the city and they were therefore not only receiving their food and salary but were also resident in the building. Space being at a premium, the staff members used to sleep wherever possible obviously huddled up close to each other and we are really concerned with the situation as it obtained on 21.2.1996 when it is alleged that the deceased Nataraj was not found in the morning, that there were some traces of blood in the small room where he was sleeping and thirdly that the accused had taken away his bag containing his belongings and left the place. A search was made for the deceased Nataraj and ultimately at about 3 p.m. in the afternoon, it was noticed that his body was found in a tank that is at the back of the premises which appears to have been a sewage tank with the head barely visible. The body was finally taken out and on examination, it was found that there was a serious injury on the right side of the skull and on further investigation the Police found a stone of medium dimensions weighing about 13 K. Gs which was obviously the cause of the injury in question. The Police commenced their investigation in the course of which the accused was traced out from his home town and it is alleged that he produced two items of clothes on which there were a few bloodstains. The Police commenced their investigation in the course of which the accused was traced out from his home town and it is alleged that he produced two items of clothes on which there were a few bloodstains. We need to straightaway mention that there is no acceptable evidence before the Court that the blood in question was human blood or for that matter that the blood group matched that of the deceased or for that matter as pointed out by the Appellant's learned Counsel that the prosecution has not established the all important ingredient namely that the few bloodstains did not tally with the blood group of the accused and consequently, this particular circumstance is not of any importance. 2. What emerged in the course of the Police investigation is something rather startling. In the first instance, when the statement of the owner of the hotel and the Manager was recorded, it was disclosed that the allegation against the deceased Nataraj as emerges from the co-workers of the accused was to the effect that he was in the habit of visiting the Bar and drinking to the extent of getting drunk almost every night appears to be established. What was even worse was that there was a direct allegation of homo-sexuality levelled against the deceased and this was not a mere suspicion or an allegation but the Manager and the proprietor have both admitted to the fact that direct complaints had been lodged with them on the ground of misbehaviour on the part of Nataraj and further more that this had resulted in quarrels and fights between them. The trial Court considered all the evidence on record, accepted the prosecution charge that it had been fully established that on the night preceding 21.2.1996 that the accused and the deceased were sleeping in a small room together and that in the morning some bloodstains were found from that place leading outside and that both the accused and the deceased had disappeared. The learned trial Judge on the basis of evidence, both direct and circumstantial held that the prosecution has established that it was the accused who was responsible for the serious head injury inflicted on the deceased Nataraj. The medical evidence clearly established that this injury had virtually shattered the skull, caused serious brain damage and that it was the cause of death. The medical evidence clearly established that this injury had virtually shattered the skull, caused serious brain damage and that it was the cause of death. The accused was accordingly convicted of the offence punishable under Section 302 Indian Penal Code and sentenced to undergo R.I. for life and to pay a fine of Rs. 1,000/-. On the subsidiary charge under Section 201 Indian Penal Code, the Court held the accused guilty in so far as the finding was to the effect that the accused had obviously dumped the body into the tank in the hope that the evidence of the crime would disappear and consequently, the accused was convicted under this section and awarded a sentence of S.I. for six months and to pay a fine of Rs. 2,000/- in default of suffer S.I. for two months. The present appeal is directed against these convictions and sentences. 3. Though this is an appeal filed in the year 1999, we need to record that the learned Counsel representing the Appellant had moved an application for the grant of interim bail and this I.A. was vehemently contested by the State. The two fold submission canvassed by the Appellant's learned Counsel was that there are no eye witnesses to this incident and that the evidence on record would effectively be only of circumstantial evidence and his submission was that the material is insufficient to sustain a conviction under Section 302 Indian Penal Code. He also raised an alternate submission in view of the fact that at the interim stage and in the absence of appreciation of evidence it is difficult to assail the validity of a conviction and what was contended was that howsoever unpalatable it may appear that if the defence has succeeded in establishing that the deceased was a homo-sexual and that he had made repeated advances to the accused and had in fact succeeded in molesting him which resulted not only in a complaint but a violent fight between the two just two days prior to the incident, that even assuming the conviction were to be sustained, that the aspect of how the accused would react to provocation of this type is something which the Court needed to take into consideration. Learned Counsel submitted that in this background if the accused has reacted violently to repulse the abhorrent behaviour on the part of the deceased, that he would not only qualify for a conviction under a lesser head of charge but that having regard to the special complexion of the case, it would be almost inhuman to award a heavy sentence considering that the accused was a de facto victim in this situation. After hearing the I.A. at considerable length, the Bench was of the view that this was a case which did qualify for a complete hearing at this stage itself, and the appeal was accordingly heard by us finally. We have done a total review of the evidence on record, the reasoning of the learned trial Judge and have heard the two learned Counsel on all aspects of the case, both factual and legal. 4. The evidence in this case does not really require to be reproduced by us witness-wise because even though the Appellant's learned Counsel weakly attempted to assail it, he himself preferred to concentrate on the more substantial aspects of the case i.e. the points of law. The submission canvassed by the learned State Public Prosecutor is really unanswerable because we have on record three virtually independent witnesses namely the proprietor and the persons in-charge of the management of the hotel P. Ws. 1, 2 and 3 who have deposed about the background of the case and whose evidence supports the defence much more than the prosecution. We also have on record PW 4, one of the colleagues of the deceased who has deposed to one of the earlier instances of sexual harassment which we shall have, occasion to refer to. 1, 2 and 3 who have deposed about the background of the case and whose evidence supports the defence much more than the prosecution. We also have on record PW 4, one of the colleagues of the deceased who has deposed to one of the earlier instances of sexual harassment which we shall have, occasion to refer to. What the learned State Public Prosecutor points out is that the evidence of these four witnesses along with the formal evidence of the panchas etc., clearly establishes that the accused was an employee of the hotel, that the accused and the deceased were sharing the same room on the night preceding the incident, that the deceased and the accused were not found in the morning of 21.2.1996 and that bloodstains were found in the room leading from there and that ultimately after the Police were called into the picture in the afternoon, the body of the deceased was found in a tank at the back of the hotel and on examination thereof, a serious head injury was detected, a large stone was also found with bloodstains on it and the most incriminating circumstance against the accused was that he had taken his bag and disappeared. The learned State Public Prosecutor submitted that the trial Court has rightly held the accused guilty of the offence under Section 302 Indian Penal Code because apart from the fact that he was last seen in the company of the deceased, that he was absconding immediately after an offence was committed, that bloodstained clothes were recovered from his house at Alanahalli at his instance and the learned State Public Prosecutor thereafter places strong reliance on the evidence of P. Ws. 1 to 4 who have narrated the background of the incident wherein it has been disclosed that there was trouble brewing between the deceased and the accused for some time prior to the incident, that the staff of the hotel had backed up the complaints from the accused which were to the effect that the deceased was given to homo-sexual activity and that on the day prior to the incident, the accused had complained of actual sexual assault by the deceased and further that two days prior to the incident, the deceased had got infuriated and even chased the accused and had threatened him with a knife. The learned State Public Prosecutor submitted that all this evidence is indicative of the fact that even if the deceased had given cause, the accused was waiting for an opportunity to hit back at him which he in fact did and thereafter, in order to hide the evidence of the murder that he obviously dragged the body up to the tank and threw it in. His submission is that not only is the evidence conclusive but that this is virtually an open and shut case and that the convictions require to be confirmed under both heads. 5. The Appellant's learned Counsel on the other hand has submitted to the Court that P.Ws. 1, 2, 3 and 4 have in their examination-in-chief as also in cross-examination clearly admitted that deceased Nataraj was in the habit of consuming alcohol and thereafter misbehaving with the staff of the hotel. They have made no secret about the fact that the misbehaviour was not only annoying but that the deceased had displayed homo-sexual tendencies which were unpalatable to the boys and that they had complained about the same. The learned Counsel has relied on another factor which emerges from this evidence namely that the focal point of the attention of the deceased was the accused and that the accused had responded adversely in so far as he had even complained to the management about the misconduct of the accused and that on the day previous to the incident, the situation had taken a serious turn because the complaint indicated an actual sexual assault. Also, what the learned Counsel highlights is the fact that some of the unpleasant details have also come out in this evidence such as the fact that though the youngsters who were really made to slog during the day looked forward to their rest, that the deceased used to get drunk and trouble them when they were sleeping and the accused had on more than one occasion complained that the deceased used to pull his leg every day and then harass him sexually. What has been argued before us basically is that this evidence unmistakably indicates that it was the deceased who had given cause for the incident in so far as it has been established from the prosecution's own evidence that he had homo-sexual tendencies and that is the main target of his sexual behaviour was the accused. What has been argued before us basically is that this evidence unmistakably indicates that it was the deceased who had given cause for the incident in so far as it has been established from the prosecution's own evidence that he had homo-sexual tendencies and that is the main target of his sexual behaviour was the accused. That the accused reacted very strongly is evident from the fact that just two days prior to the incident when the deceased was pulled up by the management for his misbehaviour, he had chased the accused and threatened him with a knife. Learned Counsel submits that in this background, that matters had reached a flash point when the accused and the deceased were sleeping in the same small room and that since all his complaints had not been of any use, the accused virtually flew into a rage and hit back at the deceased with whatever was available there as a result of which, he unfortunately lost his life. Learned Counsel submits that if in this background the accused has reacted in a fit of rage, that the evidence could only be categorised as one of culpable homicide not amounting to murder and that at the highest, he could be convicted under Section 304 Part 2 Indian Penal Code. As regards the conviction under Section 201 Indian Penal Code, the learned Counsel submits that in the absence of even an iota of evidence led by the prosecution connecting the offence the accused and the deposit of the body in the tank, that a conviction would not be sustainable and the argument proceeds on the footing that the deceased was disliked by all the boys there because of his misbehaviour and that there is every possibility that they could have dumped the body in the tank in order to save their colleague. One factor on which the learned Counsel has relied is the fact that even the trial of blood does not lead right up to the tank and this would support the theory that the attack took place in the room where the deceased was sleeping and that the body must have been carried to the tank in which case, more than one person would obviously have been involved but there is no indication as to whether the accused was one of them. The learned State Public Prosecutor has refuted this submission by pointing out that a Court is required to go by probabilities and that once it is established that the accused was the assailant, that the only logical inference would be that he alone would be interested in hiding the evidence and further more that if the assistance of others was involved, that there would have been a commotion when all of them were waken up and that from the sequence of events it is very clear that the accused either dragged or carried the body and dumped it in the tank. In our considered view, there are more than one possibilities of what exactly had transpired and in the absence of the prosecution being able to conclusively establish that it was the accused and nobody else who was responsible for the deposit of the body in the tank, it would not be in keeping with the well defined principles of criminal jurisprudence to sustain a conviction under Section 201 Indian Penal Code which is accordingly set aside. 6. On a careful and complete assessment of record, we have no hesitation in confirming the findings of the trial Court that the attack on the deceased was at the instance of the accused and that the death which resulted in that attack would consequently be the liability of the accused. We however take special note of the fact that the trial Court has not addressed itself to the all important aspect of the case namely the very unusual facts that are on record. The accused was in the habit of consuming alcohol and losing control of himself and unfortunately, it is established that he was a confirmed homo-sexual. What is even sadder is the fact that he was in the habit of targetting the boys who were working in the hotel and who used to sleep virtually next to him. His main victim was the accused and it is equally certain to us that not only had the accused not liked, what was happening but that he found it offensive and disgusting and that he even complained about it to the Manager and the Proprietor. Instead of the situation improving, it worsened because the deceased was the older of the two and the more aggressive of the two and he went to the extent of threatening the accused. Instead of the situation improving, it worsened because the deceased was the older of the two and the more aggressive of the two and he went to the extent of threatening the accused. On the next day, he once again attacked the accused sexually and we have carefully recreated the sequence of these happenings for purposes of assessing the mental condition of the accused on the night of the incident. His nerves would have been virtually raw. He was obviously tired after a long day's work. He was sensitive to anything that the deceased would have tried and when there was a repetition of the abnoxious activity by the deceased, it is obvious that mentally and physically the accused was pushed over the brink and that he lost total control of his senses. It is important to note that he had not reacted so violently on earlier occasions but the cumulative effect of all the self-control that has earlier been demonstrated only contributes to higher levels of pent up fury and one is reminded to the words of wisdom from the famous English Novelist Thomas Hardy when he used the expression "beware the fury of a patient man". Criminal Courts have to virtually do a piecemeal recreation of the crime and it is evident to us that the accused hit back in whatever fashion it was open to him and in this regard we need to point out that while there may be areas and situations where homo-sexuality is either tolerated or even considering fashionable, that in this part of the world and that too in the case of a young man who hails from a village and who has come to a city not long ago, a homo-sexual approach is not only disgusting and nauseating but more importantly, it would trigger off a violent physical reaction of wanting to hit back at the person who is making such offensive advances. It is in this background that the Court has to visualise what the accused did and if he hit back at the deceased, it is clear that he did so under provocation that was extremely grave. It is in this background that the Court has to visualise what the accused did and if he hit back at the deceased, it is clear that he did so under provocation that was extremely grave. On the question of whether it was also sudden, what we need to record is that the law recognises a situation wherein there is a long term build-up and where there is an extension of provocation until it leads to a virtual flash-point and then erupts virtually with volconic dimensions. That precisely is what would bring the case of the accused within the ambit of sudden and grave provocation in the sad but unusual facts of the case. In this background therefore, the accused would only be liable to be convicted for the offence under Section 304 Part 2 Indian Penal Code. 7. In this regard, we draw support from a decision of the Supreme Court reported in Hansa Singh Vs. State of Punjab, AIR 1977 SC 1801 wherein, the deceased who witnessed sodomy on his son flew into a rage, attacked the brother and killed him and the Court held that it was undoubtedly a grave and sudden provocation and categorised the offence under Section 304 Part 2 Indian Penal Code. 8. We then come to the all important aspect of the case where again, we are required to make a departure from the normal rule. The learned State Public Prosecutor submitted that having regard to the gravity of the injury resulting in multiple fractures of the skull or brain damage and instant death of the deceased, that even if the conviction is brought down to one under Section 304 Part 2 Indian Penal Code, that a sentence of not less than seven years R.I. must be awarded and he further added that this is important because no wrong precedents should be created. The submission was that there are hardly any extenuating circumstances because even assuming the deceased had grossly misbehaved with the accused, that this was not the first time that it had happened and that the accused cannot be justified in having killed him even if he could have been content with either assaulting or hitting back at the deceased. The submission was that there are hardly any extenuating circumstances because even assuming the deceased had grossly misbehaved with the accused, that this was not the first time that it had happened and that the accused cannot be justified in having killed him even if he could have been content with either assaulting or hitting back at the deceased. On the other hand, what is pointed out to us is that the accused had come from his village a few months earlier, that he was struggling to earn his livelihood in a small hotel, that he was an unsophisticated youngster who did not have the levels of maturity and control which better placed people might have possessed and that he was really at the receiving end and merely because the real culprit has lost his life, the accused is today facing the consequences. A plea was made that in the light of these special facts and the unusual circumstances, that this Court must extend to the accused the concession which the Supreme Court has extended in many convictions under Section 304 Indian Penal Code where genuinely extenuating grounds were pleaded. 9. Having regard to the status, the age, the economic condition and above all the manner in which the accused had been harassed prior to the incident, we have no hesitation in holding that there can be very few better cases for the dispensation of extreme leniency in exercise of judicial discretion than the present one. Though the accused is today portrayed by the prosecution as the offender, he is in fact the victim and even though the deceased has unfortunately lost his life, it is he who was the aggressor, it is he who gave cause for what happened and it is he who virtually invited the consequences. The law has to take into account all these factors and not mechanically award sentences that are prescribed in the Sections of the Indian Penal Code and after bestowing our very deep and anxious consideration to the facts and circumstances of the case, in our considered view, the accused would be entitled to the benefit of imprisonment for the period undergone by him which is approximately one year. This in our considered view, would not be creating any wrong precedent because we have fortified the reasons why a special exception has been made and there would be few parallels to the present case before any Court. In fact, this case comes dangerously close to one where the general exception would have been available because the law postulates that a citizen is entitled to defend person and property in exercise of the right of self-defence when faced with serious threats and attacks and the facts of the present case come very very close to such a situation where the accused would have been entitled to an acquittal. It is having regard to all of this, that we have reduced the sentence to the period already undergone. 10. The appeal partially succeeds. The conviction and sentence recorded against the accused by the trial Court, both under Section 302 Indian Penal Code and Section 201 Indian Penal Code are set aside. The accused is convicted of the offence punishable under Section 304 Part 2 Indian Penal Code and it is directed that he shall stand sentenced for the period already undergone by him in custody. The accused is at present undergoing sentence and it is accordingly directed that he be set at liberty forthwith if not required in connection with any other offence. The appeal succeeds to this extent and stands disposed of. 11. We are deeply indebted to the Appellant's learned Counsel Sri H.S. Chandramouli as also to the learned State Public Prosecutor Sri Mohan Shanthanagoudar for the assistance rendered to the Court particularly with regard to the specialised consideration of the legal aspects in this very unusual case.