DAUVARAM NIRMALKAR versus STATE OF CHHATTISGARH on 2 August 2022

DAUVARAM NIRMALKAR

v.

STATE OF CHHATTISGARH

(Criminal Appeal No. 1124 of 2022)

AUGUST 02, 2022

[SANJIV KHANNA AND BELA M. TRIVEDI, JJ.]

Penal Code, 1860 – ss.304 Part I and 302 and Exception 1to s.300 – Murder – Conviction of appellant by Courts belowu/s.302 IPC for murder of his brother – Challenge to – Held: Thefact that the appellant and the deceased were together the nightwhen the deceased suffered the fatal injuries is established andproven – Therefore, s.106 of the Evidence Act gets attracted and inthe absence of any breakin or third-party involvement, the chain offacts and circumstances established beyond doubt, bares that theappellant and no other person was the perpetrator who had inflictedthe injuries on his brother – However, the acts of provocation onthe basis of which the appellant caused the death of his brotherwere both sudden and grave and there was loss of self-control –The case therefore fell under Exception 1 to s.300 IPC – Deceasedwas addicted to alcohol and used to constantly torment, abuse andthreaten the appellant – On the night of the occurrence, the deceasedhad consumed alcohol and had told the appellant to leave the houseand if not, he would kill the appellant – There was sudden loss ofself-control on account of a ‘slow burn’ reaction followed by thefinal and immediate provocation – Exception 1 to s.300 IPC applieswhen due to grave and sudden provocation, the offender, deprivedof the power of self-control, causes the death of the person whogave 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 ofprovocation under Exception 1 to s.300 IPC – Test for applicationof Exception 1 to s.300 IPC – Held: The law attaches greatimportance to two things when defence of provocation is takenunder Exception 1 to s.300 IPC – First, whether there was anintervening period for the passion to cool and for the accused to

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Aregain dominance and control over his mind – Secondly, the modeof resentment should bear some relationship to the sort of provocationthat has been given – Exception 1 to s.300 recognises that when areasonable person is tormented continuously, he may, at one pointof time, erupt and reach a break point whereby losing self-control,going astray and committing the offence – However, sustainedBprovocation principle does not do away with the requirement ofimmediate or the final provocative act, words or gesture, whichshould be verifiable – Further, this defence would not be availableif there is evidence of reflection or planning as they mirror exerciseof calculation and premeditation – The primary obligation of theCcourt is to examine the circumstances from the point of view of aperson of reasonable prudence, if there was such grave and suddenprovocation, as to reasonably conclude that a person placed insuch circumstances can temporarily lose self-control and committhe offence in the proximity to the time of provocation.

DEvidence Act, 1872 – ss. 25, 26, 27 – Confession – Admissibilityof – Held: No part of a First Information Report lodged by an accusedwith the police as an implicatory statement can be admitted intoevidence – However, the statement can be admitted to identify theaccused as the maker of the report – Further, that part of theinformation in the statement, which is distinctly related to the ‘fact’Ediscovered in consequence of such information, can also be admittedinto evidence u/s.27 of the Evidence Act, provided that the discoveryof the fact must be in relation to a material object.

Partly allowing the appeal, the Court

Conclusion

Partly allowing the appeal, the Court

HELD:1.1. The conditions which have to be satisfied forFinvoking Exception 1 to the Section 300 were laid down bySupreme Court in K.M. Nanavati caseas (a) the deceased musthave given provocation to the accused; (b) the provocation mustbe grave; (c) the provocation must be sudden; (d) the offender,by the reason of the said provocation, should have been deprivedGof his power of self-control; (e) the offender should have killedthe deceased during the continuance of the deprivation of powerof self-control; and (f) the offender must have caused the deathof the person who gave the provocation or the death of any otherperson by mistake or accident. For determining whether or notHthe provocation had temporarily deprived the offender from the power of self-control, the test to be applied is that of a reasonableman and not that of an unusually excitable and pugnaciousindividual. Further, it must be considered whether there wassufficient interval and time to allow the passion to cool. [Para10][14-C-F]

1.2. It was further held in K.M. Nanavati case that the mentalbackground created by the previous act(s) of the deceased maybe taken into consideration in ascertaining whether thesubsequent act caused sudden and grave provocation forcommitting the offence. There can be sustained and continuousprovocations over a period of time, albeit in such cases Exception1 to Section 300 of the IPC applies when preceding the offence,there was a last act, word or gesture in the series of incidentscomprising of that conduct, amounting to sudden provocationsufficient for reactive loss of self-control.[Para 11][15-F-H]

1.3. The question of loss of self-control by grave and suddenprovocation is a question of fact. Act of provocation and loss ofself-control, must be actual and reasonable. The law attaches greatimportance to two things when defence of provocation is takenunder Exception 1 to Section 300 of the IPC. First, whether therewas an intervening period for the passion to cool and for theaccused to regain dominance and control over his mind. Secondly,the mode of resentment should bear some relationship to thesort of provocation that has been given. The retaliation shouldbe proportionate to the provocation. The first part lays emphasison whether the accused acting as a reasonable man had time toreflect and cool down. The offender is presumed to possess thegeneral power of self-control of an ordinary or reasonable man,belonging to the same class of society as the accused, placed inthe same situation in which the accused is placed, to temporarilylose the power of self-control. The second part emphasises thatthe offender’s reaction to the provocation is to be judged on thebasis of whether the provocation was sufficient to bring about aloss of self-control in the fact situation. Here again, the courtwould have to apply the test of a reasonable person in thecircumstances. [Para 12][16-C-F]

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8SUPREME COURT REPORTS[2022] 7 S.C.R.A1.4. The gravity of the provocation can be assessed bytaking into account the history of the abuse and need not beconfined to the gravity of the final provocative act in the form ofacts, words or gestures. The final wrongdoing, triggering off theaccused’s reaction, should be identified to show that there wastemporary loss of self-control and the accused had acted withoutBplanning and premeditation. Exception 1 to Section 300recognises that when a reasonable person is tormentedcontinuously, he may, at one point of time, erupt and reach a breakpoint whereby losing self-control, going astray and committingthe offence. However, sustained provocation principle does notCdo away with the requirement of immediate or the finalprovocative act, words or gesture, which should be verifiable.Further, this defence would not be available if there is evidenceof reflection or planning as they mirror exercise of calculationand premeditation. [Para 13][17-B-C, F]D2.1. Following the view expressed in K.M. Nanavati case,this Court in Budhi Singh case observed that in the test forapplication of Exception 1 to Section 300 of the IPC, the primaryobligation of the court is to examine the circumstances from thepoint of view of a person of reasonable prudence, if there wassuch grave and sudden provocation, as to reasonably concludeEthat a person placed in such circumstances can temporarily loseself-control and commit the offence in the proximity to the timeof provocation. A significant observation in Budhi Singh case isthat the provocation may be an act or series of acts done by thedeceased to the accused resulting in inflicting of the injury. TheFidea behind this exception is to exclude the acts of violence whichare premeditated, and not to deny consideration of circumstancessuch as prior animosity between the deceased and the accused,arising as a result of incidents in the past and subsequentlyresulting in sudden and grave provocation. [Para 14][17-G-H;18-A-C]G

2.2. The prosecution must prove the guilt of the accused,that is, it must establish all ingredients of the offence with whichthe accused is charged, but this burden should not be mixed withthe burden on the accused of proving that the case falls within anexception. However, to discharge this burden the accused mayH

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rely upon the case of the prosecution and the evidence adducedby the prosecution in the court. It is in this context the case ofthe prosecution in the instant case may be referred to, which isthat the deceased was addicted to alcohol and used to constantlytorment, abuse and threaten the appellant. On the night of theoccurrence, the deceased had consumed alcohol and had toldthe appellant to leave the house and if not, he would kill theappellant. There was sudden loss of self-control on account of a‘slow burn’ reaction followed by the final and immediateprovocation. There was temporary loss of self-control as theappellant had tried to kill himself by holding live electrical wires.Therefore, the acts of provocation on the basis of which theappellant caused the death of his brother were both sudden andgrave and that there was loss of self-control. [Para 15][18-D-F]

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3. Applying the provocation exception, the conviction ofthe appellant is converted from Section 302 to Part I of Section304 of the IPC. [Para 16][18-G]

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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.

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Rampal Singh v. State of Uttar Pradesh (2012) 8 SCC289 : [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.

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Case Law Reference

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ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1124 of 2022.

From the Judgment and Order dated 25.02.2019 of the High Courtof Chhattisgarh in Criminal Appeal No. 400 of 2013.

Harinder Mohan Singh, Adv. for the Appellant.BSumeer Sodhi, Dhruv Wadhwa, Advs. for the Respondent.

The Judgment of the Court was delivered by SANJIV KHANNA, J.

1. Leave granted.C

2. The appellant, Dauvaram Nirmalkar, has been convicted underSection 302 of the Indian Penal Code, 1860,[1] 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 imprisonmentfor a period of six months.D

3. Dr. Nohar Prasad Jangde (PW-12), the senior medical officerat the Government District Hospital, Durg District – Durg, Chhattisgarh,has proved the post mortem report - Ex. P-18, and has testified thatDashrath Nirmalkar had died due to coma as a result of shock, in viewof the injuries given on the scalp of his head, causing multiple fracturesEon the skull bone. Dashrath Nirmalkar suffered fractures in the lefttemporal, frontal, parietal, and left occipital lateral side with a deep lesion.A lacerated wound was also present on the chin. Homicidal death ofDashrath Nirmalkar is not disputed and challenged before us.

4. On the question of the involvement of the appellant as theFperpetrator, we are in agreement with the High Court and the trial court.No doubt the public witnesses, Manoj Vishwakarma (PW-1) – a localteacher; Brijesh Sharma (PW-2) – a vegetable seller; Bhagwati PrasadNirmalkar (PW-3) – younger brother of the appellant; Nakul Ram Sahu(PW-4) – neighbour of the appellant; Treveni Bai (PW-7) – sister of theGappellant; Geeta Bai (PW-8) – sister-in-law of the appellant; KumariShanti Nirmalkar (PW-9) – niece of the appellant; Kumari MadhuNirmalkar (PW-10) – niece of the appellant; and Kejauram Nirmalkar(PW-11) – half brother-in-law of the appellant had turned hostile, there H1 For short, “IPC”.

is ample evidence and material implicating and establishing the appellant’sinvolvement beyond doubt.

5. On 26[th] September, 2011, the appellant himself went to thepolice station and confessed the crime, albeit, the confession isinadmissible as proof of confession is prohibited under Section 25 of theIndian Evidence Act, 1872[2]. This Court in Aghnoo Nagesia v. State ofBihar[3] has held that the confessional statement not only includes theadmission of the offence, but all the other admissions of incriminatingfacts relating to the offence. The severability test which was applied bysome of the High Courts to admit evidence, wherein each sentence istreated separately to admit the non-confessional part, was held to bemisleading and consequently rejected. Thus, no part of a First InformationReport lodged by an accused with the police as an implicatory statementcan be admitted into evidence. However, the statement can be admittedto identify the accused as the maker of the report. Further, that part ofthe information in the statement, which is distinctly related to the ‘fact’discovered in consequence of such information, can also be admittedinto evidence under Section 27 of the Evidence Act, provided that thediscovery of the fact must be in relation to a material object.[4] We addthat the conduct of the appellant is relevant and admissible under Section8 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 theappellant used to reside vide Ex. P-1. The seized pick-axe and the shirtof the appellant, which he wore at the time of the incident, were found tobe stained with blood. The disclosure made by the appellant also led tothe discovery of the body of Dashrath Nirmalkar at the house where theappellant was residing.

7. It is an accepted position that the public witnesses, ManojVishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati PrasadNirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai (PW-7), GeetaBai (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 appellant and Dashrath 2 For short, “Evidence Act”.

3 (1966) 1 SCR 134.

4 Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671.

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ANirmalkar used to stay in separate rooms at the same house. Testimoniesof Kumari Shanti Nirmalkar (PW-9) and Kumari Madhu Nirmalkar(PW-10) are important as they were present in the house at the time ofthe incident. Kumari Shanti Nirmalkar (PW-9) had avowed that her sisterKumari Madhu Nirmalkar (PW-10) had come and told her that theiruncle Dashrath Nirmalkar had died. Kumari Shanti Nirmalkar (PW-9)Bhad claimed that Kumari Madhu Nirmalkar (PW-10) had told her thatDashrath Nirmalkar was killed by the appellant. However, Kumari MadhuNirmalkar (PW-10) did not profess to having made any such statement,or that she had seen the appellant committing the offence. At the same-time, Kumari Shanti Nirmalkar (PW-9) and Kumari Madhu NirmalkarC(PW-10) have not deposed about the presence of any intruder or thirdperson that night. No such suggestion was given to them in the cross-examination as well. Such suggestions were also not given to ManojVishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati PrasadNirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai (PW-7), GeetaBai (PW-8), and Kejauram Nirmalkar (PW-11). Therefore, defence ofDthe appellant in his statement under Section 313 of the Code of CriminalProcedure, 1973[5] that some third person had killed his brother DashrathNirmalkar, carries no weight and has been rightly rejected. The appellanthad suffered from burn injuries in his hands, which the appellant hadaccepted in his statement under Section 313 of the Cr.P.C. The appellantEhad tried to commit suicide by catching live electrical wires, andconsequently he was charged for the offence under Section 309 of theIPC[6]. The appellant had admitted his guilt and was consequentlysentenced to undergo simple imprisonment for 10 days vide Ex. P-33.Thus, the fact that the appellant and the deceased were together thenight when the deceased suffered the fatal injuries is established andFproven. Therefore, Section 106 of the Evidence Act[7 ]gets attracted andin the absence of any break-in or third-party involvement, the chain offacts and circumstances established beyond doubt, bares that the appellantand no other person was the perpetrator who had inflicted the injuries onDashrath Nirmalkar.

G5 For short, “Cr.P.C.”

6 309. Attempt to commit suicide. —Whoever attempts to commit suicide and doesany act towards the commission of such offence, shall be punished with simpleimprisonment for a term which may extend to one year 3 [or with fine, or with both.]7 106. Burden of proving fact especially within knowledge. –– When any fact isespecially within the knowledge of any person, the burden of proving that fact is uponHhim.

8. However, in our opinion, this case will fall under Exception 1 toSection 300 of the IPC[8 ]Bhagwati Prasad Nirmalkar (PW-3), the youngerbrother of the appellant and the deceased, had deposed that the deceasedused to frequently drink alcohol, barely interacted with the family, andused to debate and quarrel with the appellant. Nakul Ram Sahu (PW-4),the neighbour of the appellant, had similarly testified that the deceasedwas addicted to alcohol and his wife had left him. Dashrath Nirmalkar’saddiction to alcohol, and that he was extremely abusive and ill-temperedis the common narration by Geeta Bai (PW-8), wife of Bhagwati PrasadNirmalkar (PW-3), and Kumari Shanti Nirmalkar (PW-9), and KumariMadhu Nirmalkar (PW-10), nieces of the appellant and DashrathNirmalkar. The prosecution does not dispute this position and in fact, hasrelied upon these facts to show motive.

8 300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder,if the act by which the death is caused is done with the intention of causing death, or—

Secondly. —If it is done with the intention of causing such bodily injury as theoffender knows to be likely to cause the death of the person to whom the harm iscaused, or—

Thirdly. —If it is done with the intention of causing bodily injury to any personand the bodily injury intended to be inflicted is sufficient in the ordinary course ofnature to cause death, or—

Fourthly. —If the person committing the act knows that it is so imminentlydangerous that it must, in all probability, cause death, or such bodily injury as is likelyto cause death, and commits such act without any excuse for incurring the risk ofcausing death or such injury as aforesaid.

Exception 1. —When culpable homicide is not murder. —Culpable homicideis not murder if the offender, whilst deprived of the power of self-control by grave andsudden provocation, causes the death of the person who gave the provocation or causesthe death of any other person by mistake or accident.

The above exception is subject to the following provisos: —

First. —That the provocation is not sought or voluntarily provoked by theoffender as an excuse for killing or doing harm to any person.

Secondly. —That the provocation is not given by anything done in obedience tothe law, or by a public servant in the lawful exercise of the powers of such publicservant.

Thirdly. —That the provocation is not given by anything done in the lawfulexercise of the right of private defence.

Explanation. —Whether the provocation was grave and sudden enough to preventthe offence from amounting to murder is a question of fact.

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A9. Exception 1 differs from Exception 4 of Section 300 of theIPC[9]. Exception 1 applies when due to grave and sudden provocation,the offender, deprived of the power of self-control, causes the death ofthe person who gave the provocation. Exception 1 also applies when theoffender, on account of loss of self-control due to grave and suddenprovocation, causes the death of any other person by mistake or accident.BException 4 applies when an offence is committed without premeditation,in a sudden fight in the heat of passion upon a sudden quarrel and theoffender commits culpable homicide without having taken undueadvantage of acting in a cruel and unusual manner. The Explanation toException 4 states that in such cases it is immaterial which party givesCthe provocation or commits the first assault.

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10. Interpreting Exception 1 to the Section 300 in K.M. Nanavativ. State of Maharashtra,[10] this Court has held that the conditions whichhave to be satisfied for the exception to be invoked are (a) the deceasedmust have given provocation to the accused; (b) the provocation mustDbe grave; (c) the provocation must be sudden; (d) the offender, by thereason of the said provocation, should have been deprived of his powerof self-control; (e) the offender should have killed the deceased duringthe continuance of the deprivation of power of self-control; and (f) theoffender must have caused the death of the person who gave theprovocation or the death of any other person by mistake or accident. ForEdetermining whether or not the provocation had temporarily deprivedthe offender from the power of self-control, the test to be applied is thatof a reasonable man and not that of an unusually excitable and pugnaciousindividual. Further, it must be considered whether there was sufficientinterval and time to allow the passion to cool. K.M. Nanavati (supra)Fsuccinctly observes:

“84. Is there any standard of a reasonable man for the applicationof the doctrine of “grave and sudden” provocation? No abstractstandard of reasonableness can be laid down. What a reasonableman will do in certain circumstances depends upon the customs,G9300. Murder. —

Exception 4. —Culpable homicide is not murder if it is committed withoutpremeditation in a sudden fight in the heat of passion upon a sudden quarrel andwithout the offender’s having taken undue advantage or acted in a cruel or unusualmanner.Explanation. —It is immaterial in such cases which party offers theprovocation or commits the first assault.H10 1962 Supp (1) SCR 567.

manners, way of life, traditional values etc.; in short, the cultural,social and emotional background of the society to which an accusedbelongs. In our vast country there are social groups ranging fromthe lowest to the highest state of civilization. It is neither possiblenor desirable to lay down any standard with precision: it is for thecourt to decide in each case, having regard to the relevantcircumstances. It is not necessary in this case to ascertain whethera reasonable man placed in the position of the accused wouldhave lost his self-control momentarily or even temporarily whenhis wife confessed to him of her illicit intimacy with another, forwe are satisfied on the evidence that the accused regained hisself-control and killed Ahuja deliberately.

85. The Indian law, relevant to the present enquiry, may be statedthus: (1) The test of “grave and sudden” provocation is whether areasonable man, belonging to the same class of society as theaccused, placed in the situation in which the accused was placedwould be so provoked as to lose his self-control. (2) In India,words and gestures may also, under certain circumstances, causegrave and sudden provocation to an accused so as to bring his actwithin the First Exception to Section 300 of the Indian Penal Code.(3) The mental background created by the previous act of thevictim may be taken into consideration in ascertaining whetherthe subsequent act caused grave and sudden provocation forcommitting the offence. (4) The fatal blow should be clearly tracedto the influence of passion arising from that provocation and notafter the passion had cooled down by lapse of time, or otherwisegiving room and scope for premeditation and calculation.”

11. K.M. Nanavati (supra), has held that the mental backgroundcreated by the previous act(s) of the deceased may be taken intoconsideration in ascertaining whether the subsequent act caused suddenand grave provocation for committing the offence. There can be sustainedand continuous provocations over a period of time, albeit in such casesException 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 comprisingof that conduct, amounting to sudden provocation sufficient for reactiveloss of self-control. K.M. Nanavati (supra) quotes the definition of‘provocation’ given by Goddard, C.J.; in R. v. Duffy,[11] as :

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A“...some act or series of acts, done by the dead man to the accusedwhich would cause in any reasonable person, and actually causesin the accused, a sudden and temporary loss of self-control,rendering the accused so subject to passion as to make him or herfor the moment not master of his own mind...[I]ndeed,circumstances which induce a desire for revenge are inconsistentBwith provocation, since the conscious formulation of a desire forrevenge means that the person had the time to think, to reflect,and that would negative a sudden temporary loss of self-controlwhich is of the essence of provocation...”.

12. The question of loss of self-control by grave and suddenCprovocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importanceto two things when defence of provocation is taken under Exception 1 toSection 300 of the IPC. First, whether there was an intervening periodfor the passion to cool and for the accused to regain dominance andDcontrol over his mind. Secondly, the mode of resentment should bearsome relationship to the sort of provocation that has been given. Theretaliation should be proportionate to the provocation.[12] The first partlays emphasis on whether the accused acting as a reasonable man hadtime to reflect and cool down. The offender is presumed to possess thegeneral power of self-control of an ordinary or reasonable man, belongingEto the same class of society as the accused, placed in the same situationin which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender’s reaction to theprovocation is to be judged on the basis of whether the provocation wassufficient to bring about a loss of self-control in the fact situation. Here Fagain, the court would have to apply the test of a reasonable person inthe circumstances. While examining these questions, we should not beshort-sighted, and must take into account the whole of the events, includingthe events on the day of the fatality, as these are relevant for decidingwhether the accused was acting under the cumulative and continuing stress of provocation. Gravity of provocation turns upon the whole ofGthe victim’s abusive behaviour towards the accused. Gravity does nothinge upon a single or last act of provocation deemed sufficient by itselfto trigger the punitive action. Last provocation has to be considered inlight of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustainedprovocation test would be satisfied when the accused’s retaliation wasimmediately preceded and precipitated by some sort of provocativeconduct, which would satisfy the requirement of sudden or immediateprovocation.

13. Thus, the gravity of the provocation can be assessed by takinginto account the history of the abuse and need not be confined to thegravity of the final provocative act in the form of acts, words or gestures.The final wrongdoing, triggering off the accused’s reaction, should beidentified to show that there was temporary loss of self-control and theaccused had acted without planning and premeditation. This has beenaptly summarised by Ashworth[13] in the following words:

“[T]he significance of the deceased’s final act should beconsidered by reference to the previous relations between theparties, taking into account any previous incidents which add colourto the final act. This is not to argue that the basic distinctionbetween sudden provoked killings and revenge killings should beblurred, for the lapse of time between the deceased’s final actand the accused’s retaliation should continue to tell against him.The point is that the significance of the deceased’s final act andits effect upon the accused – and indeed the relation of theretaliation to that act – can be neither understood nor evaluatedwithout reference to previous dealings between the parties.”

Exception 1 to Section 300 recognises that when a reasonableperson is tormented continuously, he may, at one point of time, erupt andreach a break point whereby losing self-control, going astray andcommitting the offence. However, sustained provocation principle doesnot do away with the requirement of immediate or the final provocativeact, words or gesture, which should be verifiable. Further, this defencewould not be available if there is evidence of reflection or planning asthey mirror exercise of calculation and premeditation.

14. Following the view expressed in K.M. Nanavati (supra), thisCourt in Budhi Singh v. State of Himachal Pradesh[14] observed that inthe test for application of Exception 1 to Section 300 of the IPC, theprimary obligation of the court is to examine the circumstances from the13 1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper‘Cumulative Provocation and Partial Defences in English Criminal Law’.14 (2012) 13 SCC 663.

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Apoint of view of a person of reasonable prudence, if there was suchgrave and sudden provocation, as to reasonably conclude that a personplaced in such circumstances can temporarily lose self-control and committhe offence in the proximity to the time of provocation. A significantobservation in Budhi Singh (supra) is that the provocation may be anact or series of acts done by the deceased to the accused resulting inBinflicting of the injury. The idea behind this exception is to exclude theacts of violence which are premeditated, and not to deny considerationof circumstances such as prior animosity between the deceased and theaccused, arising as a result of incidents in the past and subsequentlyresulting in sudden and grave provocation. In support of the aforesaidCproposition and to convert the conviction from Section 302 to Section304 Part I of the IPC in Budhi Singh (supra), the Court also relied uponRampal Singh v. State of Uttar Pradesh[15].

15. For clarity, it must be stated that the prosecution must provethe guilt of the accused, that is, it must establish all ingredients of theDoffence with which the accused is charged, but this burden should notbe mixed with the burden on the accused of proving that the case fallswithin an exception. However, to discharge this burden the accusedmay rely upon the case of the prosecution and the evidence adduced bythe prosecution in the court. It is in this context we would refer to thecase of the prosecution, which is that the deceased was addicted toEalcohol and used to constantly torment, abuse and threaten the appellant.On the night of the occurrence, the deceased had consumed alcohol andhad told the appellant to leave the house and if not, he would kill theappellant. There was sudden loss of self-control on account of a ‘slowburn’ reaction followed by the final and immediate provocation. ThereFwas temporary loss of self-control as the appellant had tried to kill himselfby holding live electrical wires. Therefore, we hold that the acts ofprovocation on the basis of which the appellant caused the death of hisbrother, Dashrath Nirmalkar, were both sudden and grave and that therewas loss of self-control.

G16. Applying the provocation exception, we would convert theconviction of the appellant from Section 302 to Part I of Section 304 ofthe IPC.

17. On the question of sentence, we have been informed that theappellant has already suffered incarceration for over 10 years, as he hasH15 (2012) 8 SCC 289.

been in custody since 27[th] September, 2011. In the aforesaidcircumstances, we are inclined to modify the sentence of imprisonmentto the period already undergone. In addition, the appellant would have topay a fine of Rs. 1,000/- and in default, will undergo simple imprisonmentfor a period of six months. On payment of fine or default imprisonment,the appellant is directed to be released forthwith, if not required to bedetained for any other case.

18. The appeal is partly allowed modifying the conviction andsentence in the aforesaid terms.

Bibhuti Bhushan Bose(Assisted by : Neha Sharma, LCRA)

Appeal partly allowed.

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