Allahabad High Court
Jag Prasad Alias Tigghi vs State Of U.P. on 14 March, 2018
Author: Shabihul Hasnain
Bench: Shabihul Hasnain, Raghvendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 1.2.2018
Delivered on 14.3.2018
Criminal Appeal No.930 of 1981
Jag Prasad alias Tigghi. .....Accused/appellant
Versus
State of U.P. .......Opposite party.
Connected with
Criminal Appeal No.191 of 1982
Jag Prasad Versus State of U.P.
Hon'ble Shabihul Hasnain, J.
Hon'ble Raghvendra Kumar, J.
(delivered by Hon'ble Shabihul Hasnain, J.) Heard Sri Brijesh Yadav, learned counsel for the appellant as well as learned A.G.A. for the State.
This criminal appeal has been filed against the judgment and order dated 29.10.1981 passed by V Addl. Sessions Judge, Faizabad in Sessions Trial N.142 of 1981 (State Vs. Jag Prasad and others) by which accused Jag Prasad alias Digghi has been charged under Section 302 IPC and accused Ram Dayal and Ram Khelawan have been charged under Section 302 IPC read with Section 34 IPC for committing the murder of Hausila Prasad.
The prosecution case in brief is that Jag Prasad and Ram Dayal are the sons of Ram Khelawan accused. They and the complainant lived in Shiran Ka Purwa, hamlet of Maiher Kabir pur. The complainant belongs to Nai Biradari and the accused belong to Ahir caste. There are only 13 houses in that Purwa out of which 12 belong to the Ahir and one belongs to the Nai i.e. the complainant. In the month of Magh in the same year when the occurrence is alleged to have taken place, Hausila was scrapping grass where the wife of Jag Prasad was also scrapping. The wife of Jag Prasad told Hausila that she had no fodder to feed her cattle on which Hausila offered her Rs.20/- for purchasing fodder. The wife of Jag Prasad complained to Ram Khelawan on which Ram Khelawan complained to Ram Kripal that Hausila teases his daughter-in-law and shows money. Hausila narrated the whole incident but they were not satisfied by his explanation. Ram Khelawan asked them not to come to their door in future and refused to get the beard shaved by him. Since then they have left shaving the beard of the Ahirs. Two days before the occurrence a quarrel took place between Jag Prasad and the wife of Triveni. The wife of Triveni told Jag Prasad that Hausila was offering money to his wife and he could do nothing and showing himself to be very brave before her. Hearing this taunt Jag Prasad started abusing Hausila and Jag Prasad threatened to murder Hausila. Jag Prasad took his wife to her father's place after beating her and returned on the day of the occurrence. Due to this strained relations on 12.11.1980 at about sun set when Hausila went to ease himself and Ram Kripal was cutting the fodder, Jag Prasad on the instigation of Ram Dayal and Ram Khelawan murdered Hausila. He heard the noise of Hausila that Jag Prasad was murdering him. He and his brother's wife Smt. Anara Devi and Shiv Prasad rushed and saw Jag Prasad striking lathi on Hausila. Ram Khelawan and Ram Dayal were instigating Jag Prasad to murder him. When the accused saw them coming they fled away. Hausila fell on the ground. His head was broken. Ram Kripal tied Angochha on his head and brought him to their door and he died after 10 minutes. Ram Kripal went to the police station and lodged report at 8.30 p.m. A case under Section 302 IPC was registered. Sri Ram Suphal Sharma, S.O. Haiderganj was present at that time when the F.I.R. was lodged. He started investigating. He went on Jeep to the place of occurrence, found the dead body of Hausila at his door. He prepared Panchayatnama, photo lash, chalan lash and sealed dead body and gave it in the Supurdagi of Dan Bahadur and Ludhai Chaukidar. The body was sent for the post mortem examination in the early morning. He prepared site plan, recorded the statements of the witnesses and submitted charge sheet against the accused.
The dead body of Hausila was examined by Dr. A. H. Khan on 14.11.1980 at about 2 p.m. and he found the following anti mortem injuries on the dead body of Hausila:-
1. Abrasion 1.5 cm x 5 cm on the right side of the forehead 3 cm above the right eye brow.
2. Lacerated wound 4 cm x 1 cm x scalp deep on the left side head 8 cm above the posterior to left eye brow diagonally placed.
3. Contusion 3 cm x 2 cm on the front of lower part of chest 26 cm below left collar bone.
On internal examination a fracture of linear of the left temporal bone frontal bone under injury no.2 was detected. The left side base of the skull was also found fractured. There was also a fracture of ninth and tenth ribs on left side under the injury no.3.
The doctor reported that the death was due to shock and hemorrhage as a result of injury no.2.
The C.J.M. committed the case to the court of sessions on 10.4.1981.
The accused pleaded not guilty and stated that they have been falsely implicated due to enmity. Jag Prasad has stated that he has enmity with Ram Kripal regarding the Khalihan. Hausila had jumped in the house of Jagannath and he was arrested and sent to jail. He was a man of bad character. He has admitted that Ram Khelawan is his father and Ram Kripal is his brother and they reside together in Ahir Ka Purwa hamlet of Maiher Kabir Pur. He has stated that people of different caste reside in that Purwa. Ram Khelawan has also stated that he had enmity with Ram Kripal regarding Khalihan. He wanted to occupy this Khalihan and Hausila was murdered in the night and they were falsely implicated due to that enmity of Khalihan. Ram Dayal has also stated that he is the real brother of Jag Prasad and has been falsely implicated due to the Khalihan enmity.
The prosecution in support of its case has examined Ram Kripal, Shiv Prasad, Smt. Anara Devi, Dr. A. H. Khan, Tej Bahadur Singh, Head Constable and Ram Suphal Sharma. Out of these witnesses Ram Kripal P.W. 1 is the brother of Hausila deceased and informant, Shiv Prasad P. W. 2 is the witness of the occurrence. Smt. Anara Devi, P.W. 3 is the brother's wife of Hausila deceased and an eye witness, Dr. A. H. Khan, P.W.4 has conducted the post mortem examination of the dead body of Hausila, Tej bahadur P.W. 5 is the Head Constable who has written the F.I.R. and G.D. and Ram Suphal Sharma P.W. 6 is the Sub Inspector who has investigated the case.
It is alleged that the relation between the complainant Ram Kripal, his brother Hausila and the accused Jag Prasad and his father were strained due to the suspicion created in the mind of Jag Prasad that Hausila wanted to have some illicit connection with his wife. It is submitted that there are only the house of the complainant and his brother in Ahiran Ka Purwa and the other houses belong to the Ahirs who belong to Biradari of the accused. It is alleged that due to strained relations the complainant Ram Kripal his brother Hausila who belong to the Nai Biradari have left shaving and cutting the hair of the Ahirs. The strained relation is alleged to be due to the conversation of Hausila with the wife of Jag Prasad accused regarding the fodder of the cattle. It is alleged that one day the wife of Jag Prasad was scrapping the grass where Hausila was also sitting. She complained that she had no fodder for the cattle on which Hausila offered to give Rs.20/- for purchasing the fodder. Somehow Jag Prasad came to know this fact. Ram Khelawan complained this fact to Hausila and his brother and they asked Hausila and others not to come to their houses and refused to get the beard shaved and hair cut by the accused. The immediate motive is alleged to be the taunt given by the sister-in-law of Jag Prasad one day before the occurrence alleging that he could do nothing to Hausila who had tried to offer some money to his wife. Due to this provocation given by the sister-in-law of Jag Prasad, he is alleged to have taken his wife to her parents' house and in order to take revenge from Hausila for the alleged conversation he murdered Hausila on the instigation of his father and brother.
To prove this motive the prosecution relies on the evidence of Ram Kripal and Smt. Anara Devi. Ram Kripal has stated that Hausial had offered to give Rs.20/- to the wife of Jag Prasad when she stated that she had no fodder. The same evening Ram Khelawan came to him and asked Hausial why he was offering money to his daughter in law and why he was trying to tease her. He was also present at the time when the conversation has taken place between Ram Khelawan and Hausila. Hausila told him that he has offered to pay Rs.20/- only because the wife of Jag Prasad expressed her inability to procure fodder to the cattle. Ram Khelawan was so much enraged that he asked Hausila and Ram Kripal not come to their house for shaving beard and cutting hair. Ram Kripal has stated that due to this fact the accused bore enmity with them. Two days before the occurrence Jag Prasad had a quarrel with the wife of Triveni who taunted him that he could do nothing when Hausila offered some money to his wife. Jag Prasad at once went to Hausial and threatened to murder Hausila. Ram Kripal intervened and Jag Prasad went to his house and took his wife to her parent's house and returned on the day of the occurrence. He has stated that this incident had taken place in the month of Magh and before that the relations between Hausila and Jag Prasad were not strained. Ram Kripal has stated that he had told this fact to the Munsi at the time of lodging the report but he cannot say why it was not mentioned in it. He has later on stated that due to embarrassment it must have been committed. He has told the Munsi that Jag Prasad had beaten his wife and took her to her parents house but he cannot say why it was not mentioned in the F.I.R. He also told this fact to the Sub Inspector. This incident had taken place 1 ½ or 2 months before the murder. He has denied the defence suggestion that Hausila used to tease the wife of Ram Kripal and he was a man of bad character so he was murdered by someone else in the darkness of the night.
Smt. Anara Devi is the wife of younger brother of deceased Hausila. She is the wife of Ram Pal brother of Hausila. She has stated in cross examination that the wife of Jag Prasad was scrapping the grass 2 or 3 months before the occurrence in the month of Magh, when Hausila offered to give Rs.20/- to her to purchase fodder. Jag Prasad had hot altercation with his sister-in-law. She taunted that he could do nothing when he offered to give Rs.20/- to his wife. On hearing this Ram Khelawan had come to his house and they had hot altercation. She had told this fact to the Sub Inspector but he cannot say why it was not recorded by him in her statement.
Thus from the statement of Ram Kripal and Smt. Anara Devi it is fully proved that 1 ½ or 2 months before the occurrence, Hausila had offered to pay Rs.20/- to the wife of Jag Prasad for purchasing fodder which was taken ill by Ram Khelawan and Jag Prasad. The cross-examination also shows that the accused thought that Hausila Prasad used to tease the ladies of the village and for this purpose he also teased the wife of Jag Prasad. The immediate provocation was caused by the taunting of the wife of Triveni who had a quarrel with Jag Prasad. Jag Prasad at once went to Hausila when he was taunted by the wife of Triveni that he could do nothing when Hausial offered money to his wife and he threatened Hausila to murder him. He beat his wife and he appears to have got some suspicion about her character and took her to her parents' house. He returned the same day from his wife's house and due to that incident he and the motive to murder Hausila in order to give a lesson for insulting him and his wife by offering to give Rs.20/- to purchase fodder. It is true that this fact has not been mentioned in the F.I.R. which is not encyclopedia and it is not expected that every detail incident which had taken place before the occurrence should be mentioned in the F.I.R. It is mentioned in the F.I.R. that two days before this occurrence hot altercation had taken place between Jag Prasad and Hausila and Digghi i.e. Jag Prasad had threatened Hausila to murder him. This reference in the F.I.R. is sufficient to connect the previous incident and it was not at all necessary to mention all the details in the F.I.R. Ram Kripal is an illiterate person. His own brother was murdered so he has stated that he was very much puzzled so it also appears to one of the reasons for not mentioning the previous incident in detail in the F.I.R. The accused could not give any other explanation for the alleged false implication.
On the strength of the F.I.R., post mortem report and the statements of witnesses, we are of the opinion that there is no doubt that the accused-appellant killed the deceased. This fact has been proved beyond reasonable doubt and the F.I.R. to that extent is correct.
However, a fresh legal argument has been raised by the young lawyer Mr. Brijesh Yadav, which needs to be considered seriously. It has been submitted that the crime which has been committed cannot be categorized under Section 302 IPC but it would come within the four corners of Section 304 (1). He has referred the judgment of Gurmukh Singh Vs. State of Haryana, (2009) 15 SCC 635. In para 23 of this judgment their Lordships have laid down certain factors to be examined before awarding appropriate sentence to accused. It has been submitted that while deciding this issue the Court should look into a number of facts, which led to immediate provocation to the appellant to commit the crime while he was not in control of his senses. He has argued that if an act has been committed without deliberation and premeditation it should not be placed under Section 302 and should be treated as culpable homicide. In the present case, two facts are important which need to be looked into:-
(A) whether there was any immediate provocation to commit the crime;
(B) whether the provocation was grave enough to get a person out of his mental control to the extent of committing heinous crime.
In the present case, we find that at the back of the whole episode a woman is involved. The history of human race is replete with thousands of incidents where heinous offences have been committed in the name of women. At times, wars have been led either to get a women or to protect her. Women has been termed as one of the strongest weaknesses of the man but strength and weakness both have the potential to derail the mental balance of a common human being. The strength sometimes fills a person with heightened ego, anger, passion and over confidence and finally leads to crime without premeditation. Similarly, weakness also gives rise to fear, grief, agony, pain and despair. This also chokes the mental faculties of a person and he undertakes such action which are exclusively prohibited by law i. e. to say he commits crime.
We have to evaluate the kind of provocation which is alleged to have caused derailment of mental faculties of the enraged appellant, who committed crime in a heat of sudden provocation. We find that the wife of the appellant Jag Prasad was said to have been enticed by the deceased Hausila in field by offering Rs.20/- to her. This incident had taken place one and half or two months before the actual occurrence. It is on record that there are 13 houses in the Purwa out of which 12 belong to Ahir and one belongs to Nai. The deceased was admittedly Nai belonging to the minority group. It is admitted that the accused-appellant belonged to the majority group. The ratio becomes 12:1. Naturally, there must have been a sense of social prestige in the mind of the accused. When Hausila, who was unmarried and believed to be generally of a bad character by the accused-appellant, offered Rs.20/- to his wife in front of his father and the same was communicated by the father to the accused-appellant, he must have felt a sense of shame as well as suppressed anger.
The essential milieu of an Indian village is such where the reputation and character of a women becomes a matter of great prestige and masculinity of a man. We find that Hausila was summoned to the house by father of the appellant but the matter could not be resolved and seeds of discontent and anger were sown on that date. However, we can safely assume that the intention to kill did not occur to the appellant or the family on that date. The matter was resolved with the resolution that the complainant will not shave the beards of Ahirs henceforth and Hausila was not to go to the house of the appellant. However, it is difficult to imagine that scar of shame at the thought of the fact that someone residing in the same village had made advances towards the wife of the appellant had vanished through this truce. A legally wedded wife is supposedly the most treasured possession of an Indian man. The situation is quite different from the western countries where marriage is not taken to be sacrosanct but in Indian society the man after marriage is supposed to be the protector and guarantor of a womens' security.
The inability to deal with the crisis raised by a member of the community must have been simmering in the mind and the heart of the appellant. Somehow his prudent mind cautioned him against any rash behaviour of revenge. He controlled himself and compromised his anger by stopping Hausila from coming to his house.
The flash point perhaps came when on the date of occurrence the appellant's sister-in-law, i.e. Triveni's wife taunted the appellant about his courage and masculinity by saying that he could do nothing to Hausila, who was having illicit relations with his wife while he was showing temper to her, who is a lady. This appears to be a flash point by which suppressed anger turned into fear of being taunted as weak and incompetent man. He went over board and his mind was not able to handle the taunt, especially, when it came from another lady of the house.
The taunt was made after two months of offering Rs.20/- by Hausila to the wife of the appellant but it was a rude shock to the appellant taunting him to be incompetent protector. He suddenly realized that his family members specifically his sister-in-law believes him to be docile person,who could not guard the honour of his wife. This must have been a very painful and very traumatic experience by him. The very fact that the taunt had come after two months must have made him to realize that the indecent act of enticing his wife by Hausila was not forgotten by all concerned but was very much alive in their hearts. The taunt also must have made him realize the futility of the step taken by him in outcasting Hausila from his house.
Apparently, his sister-in-law did not think it to be sufficient reply to the overt act of Hausila. This instigated him to show his worth as a man. It must have become impossible for him to continue to live with same woman whose character was under shadow in the eyes of family members. We find that the appellant controlled himself only to the extent that he beat his wife and reached her to her father's house. This was perhaps the second compromise by him in the matter. The humiliation, the sense of loss of respect must be raging in his mind when he suddenly came across Hausila in the evening on the same fateful day. Seeing the cause of all tragedies brought into his life before him he could not resist finally and struck Hausila ending up in his death.
The crucial question still remains to be decided whether the action of Jag Prasad will be taken as sudden provocation; whether he killed Hausila on the spur of the moment without premeditation ? When he killed Hausila whether it was a preplanned murder incurring the ambit of 302 I.P.C. ? More importantly whether a period of two months would not be sufficient to be taken as cooling period.
We find that Hausila was killed in the vicinity of abadi in front of the normal residents, meaning thereby that the appellant was not on the hunt for Hausila. He was not wandering around to find Hausila to kill him. The incident has taken place in the evening and not in the late night when Hausila was asleep.
The weapon of assault is ''lathi' which is not specialized weapon to kill. Normally, when villagers intend to kill they use ''Banka', ''Ballam', ''Farsa', ''Gadasa' or Knife etc. to make full proof job. ''Lathi' is a very common thing in villages and every second or third person is having a ''Lathi', sometimes, as a routine and other times as defence weapon and sometimes as a weapon of assault also. We cannot say as to whether possession of ''Lathi' was essentially undertaken for assault. Possession of ''Lathi' cannot give rise to inference that the appellant was armed with deadly weapon by which he was going to cause death of Hausila. He did not choose any fire-arm for assault. He hit Hausila as soon as he saw him. We are not aware as to whether Hausila had said anything to further provoke the anger of the appellant or not because nothing is on record for that purpose. However, it can be assumed that the site of Hausila must have brought back the memory of all the traumatic experience in life of the appellant caused by Hausila. The flash point came when Jag Prasad could not hold himself and lost the balance of his mental faculties and hit Hausila the fatal blow.
During the argument it has also been stated that Jag Prasad had served in Army also prior to this incident. This also adds to the vulnerability of the appellant. The defence personnel are not trained to take disrespect or to swallow humiliation at the hands of enemy. They are trained to defend and sometimes to strike when the honour needs it. This may also be an added dimension for the sudden action by the appellant.
Sri Brijesh Yadav, counsel for the appellant has argued that from the date of the first incident i. e. the first provocation of occurrence i. e. offering Rs.20/- to his wife, till the date of occurrence, two months have passed yet the second provocation should be taken as final provocation which was grave and sudden provocation which caused the death.
Reliance has been placed on the judgment of Akhtar Vs. State, AIR 1964 Alld. 262, especially, on paras 8, 9, 10, 11, 18, 20 and 23 which are reproduced as under:-
"8. The next difficult question which arises, upon the facts found above, is whether the provocation was so sudden and grave as to entitle the appellant to get the benefit of Exception 1 to Section 300, Indian Penal Code on the ground that is made him lose his self-control. It cannot be doubted that the appellant lost his self-control and that he had not, before losing control over himself, done anything either violent or criminal or objectionable or improper or unreasonable. The conduct of the appellant, Akhtar, appears quite proper and reasonable until the point of time at which he lost control over himself. It is after the loss of self control that the appellant committed culpable homicide, which did or did not amount to murder according to the view taken on the question whether the provocation, which was there, was grave and sudden. We now proceed to determine whether this provocation was grave and sudden.
9. It is well to remember that, although our law relating to grave and sudden provocation, which reduces murder to culpable homicide not amounting to murder, is derived from the law evolved by English Courts, the provisions of our own Indian. Penal Code represent a later stage in the development of criminal law than that which will be found in most decisions of English Courts on this subject. As Professor Kenny points out, in his "Outlines of Criminal Law" (1952 Edition), the plea of grave and sudden provocation emerged gradually as a plea distinct and separate from the plea of self-defence in English law. The early English authorities do not clearly distinguish between the two. In Russell's Treatise on Crimes (1950 Edition) Volume I, at page 563, the difficulty of arriving at a clear distinction between cases of killing in self-defence and cases of killing as a result of physical provocation in early authorities has been commented upon.
Today, the distinction between the two is clear in English law, but the English law still imposes certain tests which a grave and sudden provocation has to pass before the plea can be declared as acceptable; and, some of these tests are a "hand over" of the times when two pleas, of self-defence and of grave and sudden provocation, were confused in English law. Under our law, the tests are somewhat different. The law as found in Exception (1) to Section 300 of the Indian Penal Code represents a stage in the evolution of criminal law at which the plea of grave and sudden provocation had become separate and distinct from the plea of self-defence for which we have separate provisions of the Indian Penal Code. A greater attention is paid to the subjective condition of the particular offender under our law, and conformity to the standards of an artificial or notional or imaginary reasonable man by the offender is certainly not required under our law. We are, as I understand the law in this country, not to conjecture what an imaginary reasonable man would have done when placed in the circumstances of the accused, but we have to decide whether a particular offender, in the circumstances found, could reasonably be held to have been and actually was so suddenly and gravely provoked as to be deprived of his power of self-control and, therefore, get the benefit of the exception No. 1 to Section 300 Indian Penal Code.
10. No doubt, the principle upon which a grave and sudden provocation mitigates the offence of one who commits a culpable homicide may be stated in very similar or almost the same words both in this country and in England. That principle was thus stated by Viscount Simon, L. C. in Holmes v. D. P. P., 1946-2 All ER 124 at p. 127:-
"The whole doctrine relating to provocation depends on the fact that it causes, or may cause a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived."
The principle was also stated in Mancini v. D. P. P. 1942 AC 1 at p. 9 by Viscount Simon, L. C., as follows: -
"It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes death."
We, however, do not think that the manner in which this principle is worked out and applied is the same in this country as it is in England. Viscount Simon, L. C., went on to observe, after stating the abovementioned principle in Mancini's case, 1942 AC 1.
"In deciding the question 'whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind:' Stephen's Digest of the Criminal Law, Article 317. The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini, 1914-3 KB 1116, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance (a) to consider whether 'a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for the retort, in the heat of passion induced by provocation by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger'. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."
11. In determining whether an accused person was overwhelmed by a grave and sudden provocation, the Courts in this country do and must investigate whether the offender acted reasonably or normally or properly, as an average person in the position and circumstances of the offender may be expected to do, until the point of time at which the offender is actually deprived of his power of self-control. But once his power of self-control has been lost, it would be futile to expect him to retain such a degree of control over himself as to exercise a choice over the weapon used by him for an attack or to show that his "mode of resentment" bore "a reasonable relationship to the provocation" which operated upon him. Indeed, if the offender were shown to display reasonableness or deliberateness or to exercise control over himself even after he had received a provocation which was grave and sudden, and before the act which caused the death, he could not be held to be really deprived of the power of self-control, and such a person could not get the benefit of Exception 1 to Section 300 Indian Penal Code.
A "reasonable relationship" between the amount of force used or the manner in which it is used and the actual requirements of a situation necessitating the use of it for the defence of person or property have to be shown for the whole period during which a right of private defence is claimed, because reasonableness of conduct provides a complete justification in such a case, and where proved, secures a clear acquittal. But, in a case where a grave and sudden provocation can be pleaded only in mitigation of an offence, because of the unreasonableness which can over-power even an otherwise reasonable or normal individual, when subjected to an extraordinary strain upon him caused by the victim's own wrong doing, the offender gets the benefit of the plea only so long as his unreasonable state of mind can be found to exist. It is not reasonable to expect the offender to exhibit a reasonableness of conduct which may destroy the very basis upon which his plea of loss of sell-control can be founded.
Therefore, we do not think that the mere fact that the actual weapon with which death was caused was a concealed knife would be sufficient to overthrow the plea of a grave and sudden provocation, although, if an offender spends time in hunting for or procuring the needed weapon, a "cooling lime" or a deliberateness of mind and conduct will be established which will be enough to negative the plea. The mode in which an offender has exhibited his anger after loss of self-control may be taken into account in awarding sentence, but to require that mode to be reasonable even after the offender has been proved to have lost control over himself would not, in our opinion, be itself reasonable. At any rate, the language of Exception 1 to Section 300 Indian Penal Code does not require the imposition of a test of reasonableness of conduct upon an accused person even after loss of self-control and before an opportunity for "reason to regain dominion over the mind," to borrow the phrase of Lord Goddard, C. J., in REX v. Duffy, 1949-1 All ER 932. In so far as provisos to Exception 1 to Section 300 Indian Penal Code imply standards of reasonable conduct, it may be observed that they also relate to what may or may not be considered sufficient provocation, or, in other words, these provisos are concerned with conditions of situations which may exist prior to loss of self-control. In the situations given in the provisos, the provocations would fall outside the purview of what could reasonably or legally constitute sufficient provocations.
18. So far as the law in this country is concerned, the position is absolutely clear inasmuch, as explanation to Exception (i) to Section 300 Indian Penal Code expressly lays down that the question whether a provocation was grave and sudden is a question of fact. In arriving at a decision upon this question of fact, no abstract standards can be laid down. Their Lordships of the Supreme Court have held in Nanavati's case, AIR 1962 SC 605:-
"What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc., in short the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard, with precision; it is for the Court to decide in each case, having regard to the relevant circumstances."
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20. Although the social setting and psychological factors, determined by the circumstances and history of the particular offender, on whose behalf the plea of grave and sudden provocation is put forward, appear to be intended to be taken into account to a much greater extent in this country, with its greater diversities of norm and standard, than it is possible or necessary to do so in England, yet, individual traits of the offender's character, such as his peculiar pugnacity or exceptional sensitiveness to insults or temperamental instability or an aberrant outlook, are not considered as grounds for any preferential treatment of the offender either in this country or in England. This was pointed out, in the course of a very illuminating judgment, by Dhavan, J., in Mahmood Vs. State, AIR 1961 All 538 where his Lordship observed: -
"The law cannot permit ill temper and other abnormalities to become assets for the purpose of committing murder, for if it did, a bad tempered man will be entitled to a lighter verdict of manslaughter where a good tempered one would be convicted for murder. (Avory, J., in 1914-3 KB 1116)."
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23. The preceding discussion of the law on the subject leads us to certain conclusions about matters which may or may not properly be considered by a Court in this country in determining whether a person accused of homicide is entitled to the benefit of the doctrine of grave and sudden provocation. Firstly, what is put forward as a grave and sudden provocation given by the victim, by means of actions, conduct, words, or gestures, must not only be sudden but also be capable of being considered grave, according to the norms or standards which govern the accused. These norms or standards represent ideas and sentiments about what is right and wrong. They may be the result of the membership of a particular social group such as a nation, a community, or even a family--or of the peculiar history and circumstances of the accused, determining the accused' s reactions towards the victim at a particular time. In every case, the test applied is an objective one in the sense that it must be capable of acceptance by reasonable men. The purely subjective or aberrant notions or outlook of the accused, even if due to his "constitutional" defects, over which he has no control, have to be disregarded.
If the problem posed by Professor Kenny, in his "Outlines of Criminal Law'', of an accused known to another to be "constitutionally liable to lose control of himself for certain small causes" and irritated deliberately by the other until he loses self-control and attacks and kills his tormentor, were to arise, a Court which extended the principle of grave and sudden provocation to such an accused person could only do so by objectively determining facts and circumstances showing that the conduct of the deceased, in spite of the knowledge of the accused's particular weakness and not the accused's purely subjective and unbalanced view of the matter--could reasonably make it a case of grave and sudden provocation. There is, however, no reported case, within our knowledge, where the benefit of the principle has been given to an accused for his exceptional constitutional defect brought out by the deceased's gross perversity.
But, we think that the particular situation and past experiences of an accused in relation to the deceased may be taken into account in considering the extent to which the accused had been repelled towards the breaking point which is there even in constitutionally normal or average individuals. Secondly, we have to consider whether the accused acted normally or reasonably, according to the standards and norms applicable to his group, until he lost control over himself. If he himself acted improperly or unreasonably, so as to invite what is put forward as the provocation, he could not get the benefit of the doctrine. Thirdly, it has to be shown that the act causing death was committed after loss of self-control but before self-possession has had an opportunity to return. This can often be presumed from the existence of a grave provocation and the sudden and drastic character of the violent and hasty act immediately following the provocation, but facts and circumstances may sometimes exist which destroy the presumption and show that self-possession was not actually lost so that the accused could not get the benefit of the doctrine.
The learned A.G.A. has argued that the plea of sudden provocation was not taken by the appellants before the lower court. It has also not been taken before this Court in the pleadings and grounds of appeal. As such, this plea cannot be raised now.
Sri Brijesh Yadav has submitted that in a case reported in AIR 1960 Allahabad 223, Babu Lal Vs. State, Hon'ble Mr. Justice A. N. Mulla and Hon'ble Mr. Justice R. A. Mishra have dealt with these aspects of the matter:-
(A) When the appellant does not take up the plea that he killed the deceased under grave and sudden provocation at the trial court, can the benefit of an exception be given to an accused person although he did not plead?
They have held that where prosecution case itself indicates that an exception is applicable in favour of the accused under the facts and circumstances of the case, the accused cannot be denied the benefit of that exception, whether he pleads it or not ?
It was further elaborated that where there are circumstances proved in the case whether by the prosecution or the defence to make an exception applicable it is immaterial form which side that evidence is placed on the record, and the benefit of these circumstances cannot be denied to an accused on the ground that he did not plead the exception.
(B) Can a defence of sudden provocation be taken up at much later stage when the cause of this provocation is embedded in past in terms of time ? Whether a cause of sudden provocation available in the year say 1900 will be available to an accused when he commits a crime say in the year 1910 i.e. after ten years of the actual cause of sudden provocation in terms of time when he actually committed the crime.
Their Lordships in paragraphs 14 and 15 of this judgment have held as under:-
"14. We have now to consider whether the circumstances proved amount to a grave and sudden provocation or not. There are innumberable cases where it has been held that where the husband surprises his wife in a compromising position with another man, it amounts to a grave and sudden provocation. In other words where knowledge that his wife is unfaithful to him comes all of a sudden to the husband, it is considered likely that he may lose his self-control and act in a wild manner. The question arises whether in the absence of actually seeing one's wife in a compromising position, the sudden appearance of a lover would amount to a sudden provocation or not. In our opinion this would depend upon the background and the circumstances of the case. The law nowhere lays down that only an ocular proof can bring a conviction of illicit intimacy. Where the circumstances can be interpreted only in one way by any reasonable person the mental picture which will form in the mind of the husband by what he saw would be just as potent and powerful to disturb his mental balance and make him lose his self-control as the ocular proof itself. In Desraj v. Emperor, 29 Cr. LJ 454 (All) the accused found his wife seated on the same cot with a man whom he had expelled from his house only a day previously and losing his self-control he killed her. It was held that he must be considered to have received a grave and sudden provocation. We do not see any difference between finding the lover inside the house and finding himself seated on the same cot. Both these circumstances in the background of other facts were sufficient to convince the absent husband about the infidelity of his wife and provoke him to an ungovernable rage. The subsequent act of killing was, therefore, not the outcome of any brutal and diabolical malignity but a consequence of human frailty to which all are liable.
15. Where the husband is living in a fool's paradise and thinks that the illicit intimacy which might have existed earlier had ceased to exist because of the changed place of residence or other circumstances and then suddenly he finds that he was mistaken in his belief and this intimacy was continuing all the time, this in our opinion would amount to a sudden knowledge which would come as a shock to him. The appellant when he came to reside in the Government House orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered when he found the deceased at his hut when he was absent. This would certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden provocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will not alter the nature of the provocation and make it any the less sudden. We, therefore, accept the contention advanced by the counsel for the defence that the circumstances established in this case prove that the appellant when he killed the deceased had lost his self-control because of a grave and sudden provocation."
Thus, we see that the concept of "sudden provocation" has been interpreted and decided with different connotations in different situations. At times its scope has been enlarged. Slowly and gradually the concept of "sustained provocation" has also crept-in in criminal jurisprudence of India. The law, as we all know, is a product of social requirements. It is a living organism. It has to keep pace with changing times and its challenges. Justice cannot be slave of straight jacket formulae in all cases. The purpose of legal jurisprudence is to secure justice in all its possible dimensions. We have seen a number of illustrations in the judgments right from early period upto present day cases.
Further a number of cases have been decided on this point and it will be interesting to go through some of them.
In K. M. Nanavati Vs. State of Maharashtra (A.I.R. 1962 S.C. 605), Hon'ble Supreme Court held that in India words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 I.P.C.
The concept of provocation, which is integral part of the offence of manslaughter in English Criminal Law has been imported to Indian Criminal Law. In this regard, both the Legal Systems are common. The reasons are obvious. The pivotal point in "provocation" is the offender having lost his mental balance, self-control due to the provocation caused to him or the situations under which he was so place. But it should not be a self created or induced one.
Under the English Criminal Law, the provocation must be grave and also sudden. But, by way of judicial thinking, the Indian Criminal Lw has gone ahead. (K. M. Nanavathi Vs. Stae of Maharastra (A.I.R. 1962 S.C. 605). In our system, there is the concept of ''sustained provocation." It is concerned with the duration of the provocation. There may be incidents/occurrences, which are such that they may not make the offender suddenly to make his out burst by his overtact. However, it may be lingering in his mind for quite sometime, torment continuous and at one point of time erupt, make him to lose his self control, make his mind to go astry, the mind may not be under his control/command and results in committing the offence. The sustained provocation/frustration nurtured in the mind of the accused reached the end of breaking point, under that accused causes the murder of the deceased.
In Sankaral Alias Sankarayee Vs. State (1980 L.W. (Crl.) 468), a Division Bench of Madras High Court has held as under:-
"When there is positive evidence to show that there was grave and sudden provocation at or about the time of occurrence, there would be no difficulty in applying the said principles. There are other tpe of cases, where there has been sustained provocation for a consideratble length of time and there would not have been a real sudden provocation immediately preceding the murder. In such cases, the Courts have given the benefit of Exception 1 to Section 300, I.P.C. on the ground that the provocation which is the route cause for the commission of the offence need not arise at the spur of the moment."
In Chandran, inRe (1988 Mad LW(CRL.)113) another Division Bench of Madras High Court while considering the sustained, sudden and grave provocation, would hold as follows:-
"As the prosecution itself is relying on the confessional statement of the accused under Section Ex. P-13, we have no reservation in accepting the case of the accused that he cut the deceased on account of the sudden and grave provocation caused by the deceased ad also on account of the sustained provocation the accused has been nurturing for a long period because of the conduct of the deceased in having illicit intimacy with his wife. Hence, we hold that the accused is entitled to Exception 1 to Section 300, I.P.C."
In Guruswami Pillai Vs. State (1991 (1) M.W.N. (Crl.) 153), at page 157, another Division Bench, of madras High Court, has held as follows:- "Therefore, though technically the exceptions to Section 300 I.P.C. appear to be limitative they can no longer be considered so, after efflux of time. In fact, Courts have added one more exception known as "sustained provocation'. Now that it is clear that the exceptions under S. 300 I.P.C. are not limitative, we have to examine whether Nallathangal's syndrome can be considered as one of the exceptions. Since the Code in the structure makes the exceptions limitative, Courts have to show restraint on circumspection in adding exceptions and such additions should be ejusdem generis."
These decisions would show that the Court could add the ''sustained provocation' as one of the Exceptions to Section 300 of the Indian Penal Code.
These principles were reiterated in Rajendran and another Vs. State of Tamilnadue (1997-2-L.W. (Crl.) 520 and in Aiyyasamy Vs. State of Tamilnadu Rep. By Inspector of Police, Pondanur Police Station-Coimbatore District (2005-1-L.W. (Crl.) 299).
In the case of Poovammal Vs. State in Criminal Appeal No.30 of 2011 Madras High Court in par 51 onwards has decided as under:-
"Poovammal and Manicam are spouses. Their only son is deceased Deivendran. They are poor barbers. On 05.10.2007, Poovammal lost her husband. She lost the sole breadwinner of her family. She has no land. No property. Suddenly, she was placed in tragic circumstances. She has no support. Her very survival is in question. Her only hope is her son. She requested him to stay with her in the village. She pleaded with him. She almost begged him. But, he was adamant. He preferred his wife than his helpless mother. He prepared to abandon his mother and settle once for all in his wife's place Thalaiyuthu, which is far away from his mother's house. Every day she pleaded with the son to support her. He refused it. It was going on. The mother has been tormented mentally. The helpless mother was put to such a situation to feel that she will be deserted by her own son soon. She became desperate. She was frustrated. It was lingering in her mind. On the night of 22.10.2007, as usual the mother pleaded with the son and the son flatly rejected her request. On the next day, early morning, her son told his wife to get ready to leave the village for Thalaiyuthu, that is to say desert/abandon his helpless mother. He told this right in front of his mother. In the circumstances, she suddenly picked up the available weapon, M.O. 1- Axe and with that assaulted him and went into the room and closed it, wept and inflicted injuries on her abdomen and neck indicating that she had also decided to leave the world. It is pertinent to note that in her complaint P.W.-1 herself had stated that her mother-in-law told the deceased that if he leave her alone, she will not live. So, at the time when the offence was committed, she lost her mental balance. She was not the master of her mind. The frustration and anguish created by the deceased in her mind continuously after 05.10.2007, got erupted in the form of her overtact on 23.10.2007.
There was no premeditation. She suddenly picked up the axe. The situation was not created by her. It was created by her son. Her immediate post conduct was her attempt to kill herself. What she did was killing of her son. In the facts and circumstances, it is an intentional act, why and under what circumstances she did it, we have already seen. So Poovammal's case will not fall under Section 300 I.P.C. read with Section 302 I.P.C. but will fall under Exception I to Section 300 I.P.C., so she become punishable under Section 304 I.P.C., Part I."
Keeping in mind the above discussion, in the present case, we can say that at the time when the appellant attacked the deceased his senses were derailed. He had lost control of himself. Reminder of illicit relations of one's wife is the most cruel kind of psychological attack upon an Indian man whose psyche is deeply ingrained in social structure of Indian villages. In the circumstances of the case, he could not bear the taunt and committed the present crime. Thus, the case of the appellant does fall within the parameters of Section 304 (II) I.P.C. instead of Section 302 I.P.C.
We accordingly partly allow the appeal and modify the conviction and sentence of appellant Jag Prasad alias Tigghi from Section 302 I.P.C. to one under Section 304 Part II, I.P.C. and sentence him to suffer rigorous imprisonment for seven years.
Let the records of this case be transmitted to the court below concerned forthwith for necessary compliance.
Dt.14.3.2018.
RKM.