Penal Code, 1860 – ss.304 Part I and 302 and Exception 1 to s.300 – Murder – Conviction of appellant by Courts below u/s.302 IPC for murder of his brother – Challenge to – Held: The fact that the appellant and the deceased were together the night when the deceased suffered the fatal injuries is established and proven – Therefore, s.106 of the Evidence Act gets attracted and in the absence of any breakin or third-party involvement, the chain of facts and circumstances established beyond doubt, bares that the appellant and no other person was the perpetrator who had inflicted the injuries on his brother – However, the acts of provocation on the basis of which the appellant caused the death of his brother were both sudden and grave and there was loss of self-control – The case therefore fell under Exception 1 to s.300 IPC – Deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant – On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant – There was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation – Exception 1 to s.300 IPC applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation – Applying the provocation exception, conviction of appellant converted from s.302 to Part I of s.304 IPC – Evidence Act, 1872 – s.106.
Penal Code, 1860 – Exception 1 to s.300 – Defence of provocation under Exception 1 to s.300 IPC – Test for application of Exception 1 to s.300 IPC – Held: The law attaches great importance to two things when defence of provocation is taken under Exception 1 to s.300 IPC – First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind – Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given – Exception 1 to s.300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence – However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable – Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation – The primary obligation of the court is to examine the circumstances from the point of view of a person of reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self-control and commit the offence in the proximity to the time of provocation. Evidence Act, 1872 – ss. 25, 26, 27 – Confession – Admissibility of – Held: 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 u/s.27 of the Evidence Act, provided that the discovery of the fact must be in relation to a material object. Partly allowing the appeal, the Court
HELD:1.1. The conditions which have to be satisfied for invoking Exception 1 to the Section 300 were laid down by Supreme Court in K.M. Nanavati case as (a) the deceased must have given provocation to the accused; (b) the provocation must be grave; (c) the provocation must be sudden; (d) the offender, by the reason of the said provocation, should have been deprived of his power of self-control; (e) the offender should have killed the deceased during the continuance of the deprivation of power of self-control; and (f) the offender must have caused the death of the person who gave the provocation or the death of any other person by mistake or accident. For determining whether or not the provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonable man and not that of an unusually excitable and pugnacious individual. Further, it must be considered whether there was sufficient interval and time to allow the passion to cool. [Para 10][14-C-F]
1.2. It was further held in K.M. Nanavati case that the mental background created by the previous act(s) of the deceased may be taken into consideration in ascertaining whether the subsequent act caused sudden and grave provocation for committing the offence. There can be sustained and continuous provocations over a period of time, albeit in such cases Exception
1 to Section 300 of the IPC applies when preceding the offence, there was a last act, word or gesture in the series of incidents comprising of that conduct, amounting to sudden provocation sufficient for reactive loss of self-control.[Para 11][15-F-H]
1.3. The 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. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC. First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender’s reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. [Para 12][16-C-F]
1.4. The gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused’s reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation. Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation. [Para 13][17-B-C, F]
2.1. Following the view expressed in K.M. Nanavati case, this Court in Budhi Singh case observed that in the test for application of Exception 1 to Section 300 of the IPC, the primary obligation of the court is to examine the circumstances from the point of view of a person of reasonable prudence, if there was such grave and sudden provocation, as to reasonably conclude that a person placed in such circumstances can temporarily lose self-control and commit the offence in the proximity to the time of provocation. A significant observation in Budhi Singh case is that the provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of violence which are premeditated, and not to deny consideration of circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation. [Para 14][17-G-H; 18-A-C]
2.2. The prosecution must prove the guilt of the accused, that is, it must establish all ingredients of the offence with which the accused is charged, but this burden should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. It is in this context the case of the prosecution in the instant case may be referred to, which is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant. On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a ‘slow burn’ reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, the acts of provocation on the basis of which the appellant caused the death of his brother were both sudden and grave and that there was loss of self-control. [Para 15][18-D-F]
3. Applying the provocation exception, the conviction of the appellant is converted from Section 302 to Part I of Section
304 of the IPC. [Para 16][18-G]
Aghnoo Nagesia v. State of Bihar [1966] 1 SCR 134; K. M. Nanavati v. State of Maharashtra [1962] 1 Suppl. SCR 567 and Budhi Singh v. State of Himachal Pradesh (2012) 13 SCC 663 : [2012] 11 SCR 848 – relied on. Rampal Singh v. State of Uttar Pradesh (2012) 8 SCC
289 : [2012] 7 SCR 160 – referred to.
R. v. Duffy (1949) 1 All.E.R. 932 Ashworth,
1975 Criminal LR 558-559 – referred to.
Paper on ‘Cumulative Provocation and Partial Defences in English Criminal Law’ by George Mousourakis – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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