Murder Trial - Supreme Court Applies "Sustained Provocation Principle"; Gravity Of "Provocation" Can Be Assessed Based On History Of Abuse

The Supreme Court observed that, for the purpose of  Exception 1 of Section 300 IPC, the last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control.

The bench comprising Justices Sanjiv Khanna and Bela M. Trivedi  also clarified that this principle does not do away with the requirement of immediate or the final provocative act, words or gesture. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation, the court added.

The court was considering an appeal filed by a person who was convicted under Section 302 IPC (murder) for killing of his own brother.

While confirming the finding that the accused was the perpetrator, the bench noted that the younger brother of the appellant had deposed that the deceased used to frequently drink alcohol, barely interacted with the family, and used to debate and quarrel with the appellant.

The court therefore proceeded to examine the scope of 'provocation' under Exception 1 Section 300 of the IPC which applies when due to grave and sudden provocation, the offender, deprived of the power of self-control, causes the death of the person who gave the provocation. The bench, in this regard, noted:

The question of loss of self-control by grave and sudden provocation is a question of fact. Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken under Exception 1 to Section 300 of the IPC.

First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind.

Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation.

The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control.

The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation. Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation.

The bench further added that the gravity of provocation does not hinge upon a single or last act of provocation deemed sufficient by itself to trigger the punitive action.

"Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation.

Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures. The final wrongdoing, triggering off the accused's reaction, should be identified to show that there was temporary loss of self-control and the accused had acted without planning and premeditation...

...Exception 1 to Section 300 recognises that when a reasonable person is tormented continuously, he may, at one point of time, erupt and reach a break point whereby losing self-control, going astray and committing the offence. However, sustained provocation principle does not do away with the requirement of immediate or the final provocative act, words or gesture, which should be verifiable. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation

The court noted that the case of the prosecution is that the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant.

"On the night of the occurrence, the deceased had consumed alcohol and had told the appellant to leave the house and if not, he would kill the appellant. There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation. There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires. Therefore, we hold that the acts of provocation on the basis of which the appellant caused the death of his brother, Dashrath Nirmalkar, were both sudden and grave and that there was loss of self-control. ", the bench observed.

The court noted that appellant has already suffered incarceration for over 10 years. Therefore, it modified the sentence of imprisonment to the period already undergone.

"In addition, the appellant would have to pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment for a period of six months. On payment of fine or default imprisonment, the appellant is directed to be released forthwith, if not required to be detained for any other case", the court clarified.

Case details

Dauvaram Nirmalkar vs State of Chhattisgarh | 2022 LiveLaw (SC) 650 |  CrA 1124 OF 2022 | 2 August 2022 | Justices Sanjiv Khanna and Bela M. Trivedi

Headnotes

Indian Penal Code, 1860 ;  Exception 1 to Section 300 - Sustained provocation principle - The last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control - The cumulative or sustained provocation test would be satisfied when the accused's retaliation was immediately preceded and precipitated by some sort of provocative conduct, which would satisfy the requirement of sudden or immediate provocation - This principle does not do away with the requirement of immediate or the final provocative act, words or gesture. Further, this defence would not be available if there is evidence of reflection or planning as they mirror exercise of calculation and premeditation - The provocation may be an act or series of acts done by the deceased to the accused resulting in inflicting of the injury. The idea behind this exception is to exclude the acts of violence which are premeditated, and not to deny consideration of circumstances such as prior animosity between the deceased and the accused, arising as a result of incidents in the past and subsequently resulting in sudden and grave provocation-Thus, the gravity of the provocation can be assessed by taking into account the history of the abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures.. (Para 12-14)

Indian Penal Code, 1860 ; Exception 1 to Section 300 - Act of provocation and loss of self-control, must be actual and reasonable. The law attaches great importance to two things when defence of provocation is taken -  First, whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind. Secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given. The retaliation should be proportionate to the provocation. The first part lays emphasis on whether the accused acting as a reasonable man had time to reflect and cool down. The offender is presumed to possess the general power of self-control of an ordinary or reasonable man, belonging to the same class of society as the accused, placed in the same situation in which the accused is placed, to temporarily lose the power of self-control. The second part emphasises that the offender's reaction to the provocation is to be judged on the basis of whether the provocation was sufficient to bring about a loss of self-control in the fact situation - Here again, the court would have to apply the test of a reasonable person in the circumstances. While examining these questions, we should not be short-sighted, and must take into account the whole of the events, including the events on the day of the fatality, as these are relevant for deciding whether the accused was acting under the cumulative and continuing stress of provocation. (Para 12)

Indian Penal Code, 1860 ; Exceptions to Section 300 - The burden of prosecution to prove the guilt of the accused should not be mixed with the burden on the accused of proving that the case falls within an exception. However, to discharge this burden the accused may rely upon the case of the prosecution and the evidence adduced by the prosecution in the court. (Para 15)

Indian Evidence Act, 1872 ; Section 25, 27, 8 - No part of a First Information Report lodged by an accused with the police as an implicatory statement can be admitted into evidence - However, the statement can be admitted to identify the accused as the maker of the report - Further, that part of the information in the statement, which is distinctly related to the 'fact' discovered in consequence of such information, can also be admitted into evidence under Section 27 of the Evidence Act, provided that the discovery of the fact must be in relation to a material object - The conduct of the accused is relevant and admissible under Section 8 of the Evidence Act. (Para 5)

Summary: Deceased was addicted to alcohol and used to constantly torment, abuse and threaten the accused (appellant) who was his brother - On the night of the occurrence, the deceased had consumed alcohol and had told the accused to leave the house and if not, he would kill the accused - There was sudden loss of self-control on account of a 'slow burn' reaction followed by the final and immediate provocation - There was temporary loss of self-control as the appellant had tried to kill himself by holding live electrical wires - The acts of provocation on the basis of which the accused caused the death of his brother were both sudden and grave and that there was loss of self-control - Conviction modified from Section 302 IPC to Section 304 Part I IPC.

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