Bombay High Court Considers Confirmation of Death Sentence and Appeal in Familial Homicide – Accused Claims Exception Under Section 300 IPC for Grave and Sudden Provocation Based on Alleged Impotency Remarks.

Confirmation of death sentence awarded by Additional Sessions Judge-4, Solapur under Section 302 IPC and criminal appeal against conviction and sentence under Sections 302 and 307 IPC.

Appellant seeks acquittal or, in the alternative, conversion of conviction from Section 302 IPC to Section 304(1) IPC on the ground of grave and sudden provocation.

The trial court convicted the accused and sentenced him to death, leading to a mandatory confirmation reference and the accused’s appeal challenging the conviction and sentence.

The Additional Sessions Judge-4, Solapur in Sessions Case No.145 of 2013, by judgment dated 16 August 2013, convicted the accused under Section 302 IPC (awarding death sentence and fine), convicted under Section 307 IPC (ten years rigorous imprisonment and fine), and acquitted under Sections 504 and 506 IPC.

Whether the testimony of PW4 Sanjivani Ombase is wholly reliable or falls in the category of neither wholly reliable nor wholly unreliable, requiring corroboration. Whether the prosecution proved the case beyond reasonable doubt. Whether the offence occurred due to grave and sudden provocation caused by the wife’s alleged remarks on impotency, thereby attracting Exception 1 to Section 300 IPC and falling under Section 304(1) IPC. Whether the conviction under Section 302 IPC is sustainable in law. Whether the death sentence imposed by the trial court should be confirmed.

Accused’s counsel contended that the testimony of PW4 Sanjivani is not trustworthy and placed it in the third category of witnesses as per Sunil Kumar v. State Govt. of NCT of Delhi, AIR 2004 SC 552, thus requiring independent corroboration. It was argued that the prosecution failed to prove its case beyond reasonable doubt, particularly because essential muddemal articles such as the knife were not produced during trial and witnesses were not shown the weapon. The defence submitted that there was no premeditation; the offence was committed due to grave and sudden provocation from the wife’s castigation regarding his impotency, therefore the case fell within Exception 1 to Section 300 IPC and at most constituted culpable homicide not amounting to murder under Section 304(1) IPC. The impugned judgment was criticized as not well-reasoned or well-considered and therefore liable to be set aside. The accused prayed for acquittal or reduction of conviction to Section 304(1) IPC.

The accused removed the photographs hanged on the wall, packed his bags with the photos and clothings and the identity card of his work place. In view of the ratio laid down by the Hon'ble Supreme Court in the case of Sunil Kumar v. State Govt. of NCT of Delhi reported in AIR 2004 SC 552, wherein the Hon'ble Supreme Court in paragraph 8 has relied upon the judgment in the case of Vadivelu Thevar v. State of Madras reported in 1957 SC 614 and has classified the oral testimony of a witness in three categories. He submitted that in the present case there was no premeditation on the part of the accused to commit the crime and the offence has occurred due to grave and sudden provocation given by P.W.4 – Sanjivani thereby castigating the accused on his sexual incapacity.

On the intervening night of 31 December 2012 and 1 January 2013, the incident occurred at the accused’s residence in village Jinti. PW4 Sanjivani Ombase lodged an FIR with Karmala Police Station on 1 January 2013. Police Inspector Laxman Borate (PW7) took over investigation, conducted inquest, spot panchnama, recorded witness statements, and sent dead bodies for postmortem. PW4 was shifted to Civil Hospital, Solapur, where her supplementary statement and bloodstained clothes were seized. The accused was arrested on 20 February 2013; during police custody on 22 February 2013, he made a disclosure statement leading to recovery of the knife and clothes from a niche in a tin shed near his house, which were seized under panchnama. After completing investigation, charge-sheet was filed before Judicial Magistrate First Class, Karmala, who committed the case to the Sessions Court. The Additional Sessions Judge-4, Solapur framed charges under Sections 302, 307, 504, 506 IPC; the accused pleaded not guilty, claiming grave and sudden provocation in his Section 313 statement. On 16 August 2013, the trial court convicted him under Sections 302 and 307 IPC, acquitted under Sections 504 and 506, and sentenced him to death, prompting a reference under Section 366 CrPC. The accused filed Criminal Appeal No.168 of 2014. The High Court heard arguments on 12 August 2014 and pronounced judgment on 27 January 2015.

• Indian Penal Code, 1860: 302, 307, 504, 506, 304(1), 300(1)
• Code of Criminal Procedure, 1973: 235(2), 366