What are the Ingredients of Grave and Sudden Provocation?
(1) That the accused received provocation;
(2) That the provocation was (a) grave, and (b) sudden;
(3) That he was deprived by the provocation of his power of self-control;
(4) That while thus deprived of his power of self-control and before he could cool down he caused the death of the person who gave him the provocation.
The Explanation at the end of the Exception is very important. It says that the question whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact, that is, it should not be treated as a question of law and should be decided according to the facts and particular circumstances of each case.
No abstract rule of reasonableness can be laid down. What a reasonable man, i.e., a normal person will do in certain circumstances depends upon the cultural, social and emotional background of the society to which he belongs.
The court must consider the reaction not of the normal man in the abstract but the normal man whose impulses are conditional by the same environments as those of the accused.
Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The provocation was not so grave as to cause a loss of self-control, the abuses giving rise to it not being such as to give rise to such degree of provocation nor can it be said to be sudden when the accused could go home, come armed with a spear bringing his brothers with him armed with lathis. The interval was sufficient to cool down.
The occurrence took place while the deceased was committing sodomy on the appellant’s son and that gave such a grave and sudden provocation and annoyance to the appellant which implied him to assault the deceased.
The provocation was grave and sudden under which the appellant lost his power of self-control which led him to commit the murderous assault on the deceased. The offence falls within the purview of Section 304, Part II, and I.P.C.
Death on account of dagger injury caused on the neck. Occurrence taking place without any premeditation while the deceased along with the accused and others had finished meals. Accused, held could not be said to have any intention to cause the particular injury on the vital part.
Accused, however, must be deemed to have knowledge that death might be caused by his act. Conviction under Section 302, I.P.C., was liable to be changed to one under Section 304, Part II. When the wife of the accused confessed to him that she had illicit intimacy with the deceased who was not present there, it can be assumed that he had momentarily lost his self-control.
But then after this when he drove his wife and children to a cinema, left them there, went to his shop, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of the deceased and then to his flat, went straight to the bedroom of the deceased and shot him dead and between the time when he left his house and the time when the murder took place, three hours had elapsed, there was sufficient time for the accused to regain self-control, even if he had not regained it earlier.
On the other hand, his conduct clearly showed that the murder was a deliberate and calculated one. The mere fact that before the shooting the accused abused the deceased and the abuse proved an equally abusive reply could not conceivably be a provocation for murder. Therefore, the facts did not attract the provisions of Exception 1 to Section 300.
Where a sudden altercation between the deceased and the accused ensues in a free fight between the two parties and both parties receive almost equal injuries, and the accused dealt a single blow resulting in death and the accused had received several injuries including one on head and fracture of bone, the case is covered by Exception 1 to Section 300 and the offence committed is culpable homicide not amounting to murder.
In a school committee meeting one B made remarks that the father and the uncle of the accused were monopolising all seats of authority, and that they were dishonest. The accused on hearing this went to his house which was about a furlong away and brought the gun.
By that time the meeting had ended in disorder and the people were dispersing on the road. The accused asked those who were near B to move away because he wanted to shoot B. Then he fired a shot but he missed his aim.
B then started running to save himself. In the meantime the deceased who was the maternal uncle of the accused rushed towards the accused in order to prevent him from using the gun. The accused however, pushed him back and fired at B.
But the deceased came between the gun and B and was shot in the back. It was held by the Supreme Court that the offence committed was of a murder because the remarks uttered by B could not be regarded as grave provocation under the circumstances.
No grave and sudden provocation:
The wife of the accused was not being sent on one pretext or the other. The accused heard rumours that his wife and his mother-in-law were selling their flesh (i.e., honour) for monetary gains and despite repeated efforts, his wife was not sent. These circumstances cannot constitute such sudden and grave provocation as to justify a murderous assault on the wife by the accused.
In the quarrel of the accused with another the innocent intervener received knife injuries from the accused due to which he died. Supreme Court held that there was no sudden and grave provocation and as such conviction under Section 302, I.PC. is proper and not under Section 304, I.P.C.
When the appellant at dead of night found the deceased with his wife alone in the house with the doors chained from inside and losing control of his mind chased the deceased and ultimately killed him it was held that person who finds his wife and her paramour in flagrante delicto undoubtedly receives the highest provocation and the indulgence which the law shows in such cases is condecension to the frality of human nature.
The circumstances provoked the appellant gravely and suddenly. The result was the reduction of the punishment from 6 years’ rigorous imprisonment to 3 years’ rigorous imprisonment.
The appellant first came to the place of occurrence empty handed. The appellant went to his room which was at a distance of only three paces, brought his knife from there and assaulted the deceased. The deceased was the father of the appellant.
The possibility of the appellant having lost his self-control as a result of the grave and sudden provocation given by the deceased cannot be ruled out. The confession of the appellant indicates that the grave and sudden provocation which made the appellant loose his self-control was the immoral conduct of the deceased.
Only one blow was given by the appellant to deceased which proved fatal. In these circumstances, the appellant cannot be held guilty under Section 302, I.P.C., but is guilty under Section 304, Part I.
It is clear that there was no case of provocation made out and much less of any grave or sudden provocation to accused during or immediately preceding the incident or as to enable the accused to plead the first exception to Section 300, Indian Penal Code.
The provocation as contemplated by law must be grave as well as sudden so as to deprive the individual of the power of self-control before the first Exception to Section 300 could apply. Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relation between the parties concerned, the background of the context, or the factual setting of the crime, and the strength and nature of the motive operating on the mind of the offender, are relevant considerations. The state of feelings and mind produced by these while insufficient to bring an exception, may suffice to make the less severe sentence more appropriate.
In Harchandra v. State of Rajasthan, the facts are that the incident took place all of a sudden and there was no evidence to show that the injuries were inflicted on the body of the deceased with the motive or intention to kill him or to cause such bodily injury which was likely to cause death. The High Court of Rajasthan held that the offence caused by the accused would amount to culpable homicide not-amounting to murder.
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
Exceeding the right of private defence:
In order to apply this Exception (2) certain conditions must be fulfilled —
(a) The act must be done in exercise of right of private defence of person or property.
(b) The act must be done in good faith.
(c) The person doing the act must have exceeded his right given to him by law and have thereby caused death.
(d) The act must have been done without premeditation and without any intention of causing more harm than was necessary in private defence.
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself being horsewhipped shoots Z dead. A has not committed murder, but only culpable homicide.
Section 304, Part I, I.P.C. covers cases which by reason of the exceptions under Section 300, I.P.C., are taken out of the purview of clauses (1), (2) and (3) of Section 300, I.P.C. but otherwise would fall within it and also cases which fall within the second part of Section 299 but not within Section 300, clauses (2) and (3). Clause (2) of Section 300 is attracted when the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused.
Clause (3) of Section 300 provides that if the act by which the death is caused is done with the intention of causing such bodily injury as is sufficient in the ordinary course of nature to cause death; culpable homicide so committed is murder.
Exception (2) to Section 300 is that culpable homicide is not murder, if the offender, in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Where there are no materials to show that the accused had any reasonable apprehension of death or grievous hurt on him and there was no premeditation to cause death, the accused exceeded the right of private defence and is guilty of an offence under Section 304, Part I, and not under Section 302, I.P.C. K started attacking A with stick.
A then stabbing K with knife causing grievous injury to K’s heart resulting in death of K. A acts in exercise of his right of private defence but exceeds that right by stabbing K in heart. A was held guilty of offence under Section 304, first part.”
Deceased though committing criminal trespass was not armed. There could have been no apprehension that death or grievous hurt was likely to be caused to accused. It has been held that the accused far exceeded his right of private defence of property by using dangerous weapon, chhura, with deadly effect and causing two injuries which cut the heart and lung. Hence, he was guilty of an offence under Section 304, Part I, I.P.C.
Four cardinal conditions must have existed before taking of the life of a person is justified on the plea of self-defence. Firstly, the accused must be free from fault in bringing about the encounter, secondly there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity; thirdly, there must be no safe or reasonable mode of escape by retreat; and fourthly, there must have been a necessity for taking life.
In a case the accused realised the seriousness of the situation and gave a blow with the stick which fell on the vulnerable part of the victim’s body resulting into his death. It was held that the case was covered by Part II of Section 304.
The appellant brought the gun from his house to protect himself having seen the aggressive posture of the students and then, faced with the fury of the students he lost nerve and fired from the gun. The case comes under Section 304, Part I, I.P.C.
The deceased was unarmed and, there was no justification on the part of the appellant for inflicting a severe blow on the head with a takwa. The right of private defence of person or property was clearly exceeded. The offence committed was culpable homicide not amounting to murder.
A was anxious to undo the mischief done to him finding that the thief was running away. A chased him and caused the injuries inflicted. It was held that A had exceeded the right of private defence. He had no right voluntarily to cause death to the wrong doer, viz., thief. In thus exceeding the right of private defence A was guilty of the offence of culpable homicide not amounting to murder and not of murder.
Discussing Exception 2 to Section 300, I.P.C. the Supreme Court in Ram Bilas Yadav v. State of Bihar, has observed:
“Under the circumstances appellants cannot claim the right of private defence as they came with premeditation and had caused more harm than was necessary, and therefore, they were not entitled to benefit of exception 2 to Section 300 of the Indian Penal Code so as to make the offence of murder as culpable homicide.”
In Ram Avtar v. State of U.P., the Supreme Court held that the sequence of the events shows that the assault by accused continued even after the danger of life of the accused had ceased. Therefore, the accused exceeded the right of private defence because it is limited to the extent it could have been available against a private individual.
In a case the accused was going in his jeep when he was surrounded by the victim and his companions whereupon he fired thrice from his revolver. It was held that it cannot be said that he fired with an intention of causing death of any particular person, and he exceeded in the exercise of right of private defence. As such he had only knowledge that his act was likely to cause death and he was convicted under Section 304, I.P.C.
When several accused, armed with guns and sticks entered the field of the complainant illegally according to a premeditated plan and fired at the complainant and his servants from close quarters and chased them, while the latter were unarmed, their resorting to firing is without reasonable cause and no right of private defence of property or person can be claimed by the accused though injuries upon the person of the accused may be unexplained by the prosecution.
The deceased, none of whom was in possession of any dangerous weapon, were harvesting the crops on a plot of land with peaceful intention under the protection of police. The accused who claimed the crops did not approach the authorities for redress although they had time to do so but attacked the deceased with guns and other dangerous weapons and shot them down from close range with the common intention of killing them after sending away the constables who had accompanied the deceased to field. It was held that Exception 2 of Section 300 would not apply to the case and that the accused were guilty of murder.