2025 INSC 90
SUPREME COURT OF INDIA
(HON’BLE J.B.
PARDIWALA, J. AND HON’BLE R. MAHADEVAN, JJ.)
VIJAY @ VIJAYAKUMAR
Petitioner
VERSUS
STATE REPRESENTED BY
INSPECTOR OF POLICE
Respondent
Criminal
Appeal No.1049 of 2021-Decided on 16-01-2025
Criminal, Culpable Homicide
(A)
Penal Code, 1860, Section 304 Part I –
Culpable homicide not amounting to murder - Nature of offence – Sentence - Incident was not pre-planned or
pre-meditated - The appellant and his friends had gone to watch a movie - They
were returning back home in the late night hours and they decided to take some
rest beneath the bridge - The deceased also happened to be sleeping beneath the
bridge - However, it is the case of the prosecution that the deceased was in a
drunken condition - In fact, there is nothing to indicate that the deceased was
drunk - However, the eye-witnesses to the incident and that too none other than
the friends of the appellant who were examined by the prosecution deposed that
the deceased was in a drunken condition -
The deceased is said to have uttered some bad words and it appears that
he also raised his hand & slapped the appellant herein - However, that by
itself may not be sufficient to bring the case within the ambit of grave and
sudden provocation - The incident occurred at a spur of a moment - The act was
not pre-planned or pre-meditated - Appellant had no weapon in his hands - He
picked up a cement stone which was lying beneath the bridge and hit the same on
the head of the deceased - Therefore, it could be said that the appellant
did not take any undue advantage or acted in a cruel or unusual manner – Held
that not inclined to disturb the conviction of the appellant - Ends of justice would be met if the
sentence imposed by the Trial Court and affirmed by the High Court is reduced
from 5 years to the period already undergone i.e. 4 years.
(Para 29 to 33)
(B)
Penal Code, 1860, Section 300 Exception I – Culpable homicide not amounting to
murder –
Application of Exception - Held that
Exception 1 to Section 300 can apply when the accused is shown to
have deprived of power of self- control by grave and sudden provocation which
is caused by the person whose death has been caused - It is not each and every provocation that
will reduce the crime from murder to culpable homicide not amounting to murder
- The provocation must be both grave and sudden - In order to invoke the
benefit of the exception, it must be established that the act committed by
the accused was a simultaneous reaction of grave as well as sudden provocation
which deprived him of the power of self- control - If the provocation is grave
but not sudden, the accused cannot get the benefit of this exception -
Likewise, he cannot invoke the exception where the provocation though sudden is
not grave.
(Para 19 and 20)
(C)
Penal Code, 1860, Section 300 Exception I – Culpable homicide not amounting to
murder - Grave and sudden provocation – Held that the provocation must
be such as will upset not merely a hasty and hot-tempered or hypersensitive
person, but one of ordinary sense and calmness - The Court has to consider
whether a reasonable person placed in the same position as accused would have
behaved in the manner in which the accused behaved on receiving the same
provocation - If it appears that the action of the accused was out of all
proportion to the gravity or magnitude of the provocation offered, the case
will not fall under the exception - The case can only fall under the exception
when the court is able to hold that provided the alleged provocation is given,
every normal person would behave or act in the same way as the accused in the
circumstances in which the accused was placed, acted.
(Para 25)
(D)
Penal Code, 1860, Section 300 Exception I – Evidence Act, 1872, Section 105 -
Culpable homicide not amounting to murder - Grave and sudden provocation – Burden of proof -
Section 105 of the Act, 1872 casts burden of proof on the accused - Being
an exception, the burden of proving the circumstances covered by Exception 1 is
on the accused - Where the prosecution prima facie proves that the act was
committed by the accused which had resulted in the death of the deceased and
the accused pleads that the case falls within one of the exceptions, it is for
him to prove that - It is for the
accused who seeks to reduce the nature of his crime by bringing his case under
Exception 1, to prove that the provocation received by him was such as
might reasonably be deemed sufficient to deprive him of self- control, and that
the act of killing took place whilst that absence of control was in existence
and may fairly be attributed to it.
(Para
27 and 28)
JUDGMENT
1.
This appeal arises from the Judgment and Order passed by the High Court of
Madras dated 27-6-2019 in Criminal Appeal No.194/2012 by which the High Court
dismissed the appeal filed by the appellant – herein and thereby affirmed the
Judgment and Order passed by the Trial Court, i.e., Sessions Judge,
Nagapattinam holding the appellant – herein guilty of the offence punishable
under Section 304 Part 1 of the Indian Penal Code (hereafter,
referred to as “IPC”) and sentencing him to undergo 5 years of rigorous
imprisonment. It appears that the appellant was also held guilty of the offence
punishable under Section 201 of IPC and was sentenced to undergo 2
years of rigorous imprisonment.
2.
The case of the prosecution in brief is as under:-
3.
The appellant – herein along with his friends including `PW 11’ and `PW
12’ had gone to watch a movie on 5-11-2007. They were returning home in
the mid night hours after watching the movie. While they were sleeping beneath
a bridge, they found the deceased over there to be in an inebriated
condition. It seems that the deceased was heavily drunk. The deceased picked up
an altercation with the appellant – herein and his friends. According to the
prosecution, at that point of time, the appellant picked up a cement brick
which was lying at the place of occurrence and hit the deceased on his head.
The deceased succumbed to the head injuries.
4.
It is also the case of the prosecution that thereafter with a view to destroy
the evidence, the appellant – herein set the dead-body of the deceased on fire.
5.
The `PW 1’ in his capacity as the Village Administrative Officer lodged a First
Information Report in this regard at the concerned Police Station.
6.
The inquest panchnama of the dead-body was carried out. Thereafter, the
dead-body was sent for postmortem. The Postmortem Report reveals that the cause
of death was due to head injuries.
7.
At the end of the investigation, the Police filed charge-sheet. The case came
to be committed to the Court of Sessions under Section 209 of the
Code of Criminal Procedure, 1973 (hereafter, referred to as “Code”).
8.
The Trial Court framed charge against the appellant – herein for the offence
enumerated above to which he pleaded not guilty and claimed to be tried.
9.
In the course of the trial, the prosecution examined the following witnesses:-
P.W.1. Thiru Mohan, Village Administrative Officer
P.W.2 Tmt Rani
P.W.3 Tmt Vanitha
P.W.4 Tmt Kavitha
P.W.5 Dr M.S. Kadar
P.W.6 Tmt Gayathri,
Scientific Assistant
P.W.7 Thiru Mohandoss
P.W.8 Thiru Srinivasan
P.W.9 Thiru Samarasapandiyan, Head Constable
P.W.10 Thiru
Rajasekar, Inspector of Police
P.W.11 Thiru Ramu
P.W.12 Tmt Raji
10.
The prosecution also relied upon the following pieces of documentary evidence:-
Ex.P.1 06.11.2007
Complaint given by Village Administrative Officer.
Ex.P.2 12.11.2007
Signature of P.W.1 in Statement of Accused.
Ex.P.3 12.11.2007
Signature of report by Village Administrative Officer.
Ex.P.4 28.11.2007
Viscera Report.
Ex.P.5 06.11.2007 Post
Mortem Certificate.
Ex.P.6 06.11.2007
Signature of P.W.7 in Observation Mahazar.
Ex.P.7 06.11.2007
Signature of P.W.7 in Mahazar.
Ex.P.8 06.11.2007
Signature of P.W.8 in Observation Mahazar.
Ex.P.9 06.11.2007
Signature of P.W.9 in Mahazar.
Ex.P.10 06.11.2007
Printed F.I.R.
Ex.P.11 06.11.2007
Observation Mahazar
Ex.P.12 06.11.2007
Rough Sketch.
ΕX.Ρ.13
06.11.2007 Mahazar.
Ex.P.14 06.11.2007
Inquest Report.
EX.P.15 06.11.2007
Special report for recovery of M.0.8.
Ex.P.16 12.11.2007
Accused Statement by Village Administrative
Ex.P.17 12.11.2007
V.A.O. report.
Ex. P.18 12.11.2007
Admissible Portion in Confession Statement
Ex.P.19 12.11.2007
Mahazar for recovery of M.O.1,2 and 9.
Ex.P.20 12.11.2007
Alteration Report.
Ex.P.21 13.11.2007
Requisition for Chemical Examination
Ex.P.22 14.11.2007
Court Letter for Chemical Examination.
Ex.P.23 28.11.2007
Biology Report.
Ex.P.24 28.02.2008
Serology Report
11.
On conclusion of the recording of the oral evidence, the further statement of
the appellant – herein was recorded by the Magistrate under Section
313 of the Code, in which the appellant claimed himself to be innocent.
12.
Upon appreciation of the oral as well as documentary evidence, the Trial Court
took the view that the case is one of culpable homicide not amounting to
murder. The Trial Court thought fit to give to the appellant herein the benefit
of Exception 1 of the Section 300 IPC on the ground that the case was
one of grave and sudden provocation and, accordingly, held the appellant –
herein guilty of the offence punishable under Section 304 (Part 1)
of IPC and sentenced him to undergo 5 years of R.I. and fine.
13.
The appellant went in appeal before the High Court. His appeal failed before
the High Court. The High Court affirmed the Judgment and Order of conviction
passed by the Trial Court.
14.
In such circumstances, the appellant is here before this Court with the present
appeal.
15.
We have heard Mr. Shreyas Kaushal, the learned counsel appearing for the
appellant and Mr. D. Kumanan, the learned counsel appearing for the State of
Tamil Nadu.
16.
We take notice of the fact that the appellant – herein has undergone 4 years of
imprisonment. The incident is of the year 2007.
17.
We have our own views in so far as applicability of Exception 1 of Section
300 IPC is concerned. However, the State is not in appeal before us.
18.
Exception one of Section 300 states that a culpable homicide is not
murder if the offender, whilst deprived of the power of self-control by grave
and sudden provocation, causes death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
19.
It is well established that Exception 1 to Section 300 can apply when
the accused is shown to have deprived of power of self- control by grave and
sudden provocation which is caused by the person whose death has been caused.
20.
It is not each and every provocation that will reduce the crime from murder to
culpable homicide not amounting to murder. The provocation must be both grave
and sudden. In order to invoke the benefit of the exception, it must be
established that the act committed by the accused was a simultaneous
reaction of grave as well as sudden provocation which deprived him of the power
of self- control. If the provocation is grave but not sudden, the accused
cannot get the benefit of this exception. Likewise, he cannot invoke the
exception where the provocation though sudden is not grave.
21.
In Mancini v. Director of Public Prosecutions reported in 1942 A.C. 1, Viscount
Simon observed:
“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. “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, art. 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 7, 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 to
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”
22.
In order to bring the case within Exception 1, the following conditions must be
complied with:
(i) The deceased must
have given provocation to the accused;
(ii) The provocation must be grave;
(iii) The provocation must be sudden;
(iv) The offender, by reason of the side
provocation, shall have been deprived of his power of self-control;
(v) He should have
killed the deceased during the continuance of the deprivation of the power of
self- control; and
(vi) The offender must
have caused the death of the person who gave the provocation or that of any
other person by mistake or accident.
23.
In other words, before Exception 1 can be invoke, the accused must establish
the following circumstances:
(i) there was a
provocation which was both grave and sudden;
(ii) such provocation
had deprived the accused of his power of self-control; and
(iii) whilst the
accused was so deprived of his power of self-control, he had caused the death
of the victim.
24.
In order to bring his case under Exception 1 to Section 300 IPC the
following ingredients:
(i) The provocation
was sudden; (ii) the provocation was grave; and (iii) loss of self-control.
These three ingredients may be considered one by one:
(i) Whether the
provocation was sudden or not does not present much difficulty. The word
‘sudden’ involves two elements. First, the provocation must be unexpected.
If an accused plans in advance to receive a provocation in order to justify the
subsequent homicide, the provocation cannot be said to be sudden. Secondly, the
interval between the provocation and the homicide should be brief. If the man
giving the provocation is killed within a minute after the provocation, it is a
case of sudden provocation. If the man is killed six hours after the
provocation, it is not a case of sudden provocation.
(ii) the main
difficulty lies in deciding whether a certain provocation was grave or not. A
bare statement by the accused that he regarded the provocation as grave will
not be accepted by the court. The court has to apply an objective test for
deciding whether the provocation was grave or not. A good test for deciding
whether a certain provocation was grave or not is this: “Is a reasonable man
likely to lose self-control as a result of such provocation?” If the answer is
in the affirmative, the provocation will be classed as grave. If the answer is
in the negative, the provocation is not grave. In this context, the expression
‘reasonable man’ means a normal or an average person. A reasonable man is not
the ideal man or the perfect being. A normal man sometimes loses temper. There
is, therefore no inconsistency in saying that, a reasonable man may lose
self-control as a result of grave provocation. A reasonable or normal or
average man is a legal fiction. The reasonable man will vary from society to
society. A Judge should not impose his personal standards in this matter.
By training, a Judge is a patient man. But the reasonable man or the
normal man need not have the same standard of behaviour as the judge himself.
The reasonable man under consideration is a member of the society, in which the
accused was living. So, education and social conditions of the accused are
relevant factors. An ordinary exchange of abuse is a matter of common
occurrence. A reasonable man does not lose self-control merely on account of an
ordinary exchange of abuses. So, courts do not treat an ordinary exchange of
abuses as a basis for grave provocation. On the other hand, in most societies,
adultery is looked upon as a very serious matter. So, quotes are prepared to
treat adultery as a basis for grave provocation.
(iii) the question of
loss of self-control comes up indirectly in deciding whether a particular
provocation was grave or not. So, if it is proved that the accused did receive
grave and sudden provocation, the court is generally prepared to assume that
homicide was committed while the accused was deprived of the power of
self-control. In some cases, it may be possible for the prosecution to prove
that the accused committed the murder with a cool head in spite of grave
provocation. But such cases will be rare. So, when the accused has established
grave and sudden provocation, the court will generally hold that he has
discharged the burden that lay upon him under Exception 1 to Section
300 IPC.
25.
What should be the approach of the court? The provocation must be such as will
upset not merely a hasty and hot-tempered or hypersensitive person, but one of
ordinary sense and calmness. The Court has to consider whether a
reasonable person placed in the same position as accused would have behaved in
the manner in which the accused behaved on receiving the same provocation. If
it appears that the action of the accused was out of all proportion to the
gravity or magnitude of the provocation offered, the case will not fall under
the exception. The case can only fall under the exception when the court is
able to hold that provided the alleged provocation is given, every normal
person would behave or act in the same way as the accused in the circumstances
in which the accused was placed, acted.
26.
In the words of Viscount Simon: "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.
Consequently, where the provocation inspires and actual intention to kill, or
to inflict grievous bodily harm the doctrine that provocation may reduce murder
to manslaughter seldom applies".
27. Section
105 of the India Evidence Act, 1872 casts burden of proof on the accused.
Being an exception, the burden of proving the circumstances covered by
Exception 1 is on the accused. Where the prosecution prima facie proves that
the act was committed by the accused which had resulted in the death of the
deceased and the accused pleads that the case falls within one of the
exceptions, it is for him to prove that.
28.
It is for the accused who seeks to reduce the nature of his crime by bringing
his case under Exception 1, to prove that the provocation received by him
was such as might reasonably be deemed sufficient to deprive him of self-
control, and that the act of killing took place whilst that absence of control
was in existence and may fairly be attributed to it. (Ref.:Ratanlal and
Dhirajlal’s Law of Crimes, 24th Edition)
29.
If at all, the Trial Court and the High Court wanted to bring the case within
the ambit of culpable homicide not amounting to murder, then it could have
invoked exception 4 of Section 300 of the IPC. We say so because the
incident was not pre-planned or pre-meditated. The appellant and his friends
had gone to watch a movie. They were returning back home in the late night
hours. It appears that after the movie was over and while returning, they
decided to take some rest beneath the bridge. The deceased also happened to be
sleeping beneath the bridge. However, it is the case of the prosecution that
the deceased was in a drunken condition. In fact, there is nothing to indicate
that the deceased was drunk. However, the eye-witnesses to the incident and
that too none other then the friends of the appellant who were examined by the
prosecution deposed that the deceased was in a drunken condition.
30.
The deceased is said to have uttered some bad words and it appears that he also
raised his hand & slapped the appellant herein. However, that by itself may
not be sufficient to bring the case within the ambit of grave and sudden
provocation.
31.
The incident occurred at a spur of a moment. The act was not pre-planned or
pre-meditated. What is important to note is that the appellant had no weapon in
his hands. He picked up a cement stone which was lying beneath the bridge and
hit the same on the head of the deceased. Therefore, it could be said that
the appellant did not take any undue advantage or acted in a cruel or unusual
manner.
32.
Be that as it may, we are not inclined to disturb the conviction of the
appellant – herein.
33.
We are of the view that the ends of justice would be met if the sentence
imposed by the Trial Court and affirmed by the High Court is reduced to the
period already undergone.
34.
The appeal stands partly allowed. While upholding the conviction, we reduce the
sentence to the period already undergone.
35.
Pending applications, if any, shall also stand disposed of.
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