Basi Reddy, J.
1. This is an appeal by the State Government from the judgment of the Sessions Judge, Kumool, in Sessions Case No. 46 of 1960, whereby the respondent, (hereinafter referred to as the accused), who was charged with the offence of murder, was convicted only of the offence of culpable homicide not amounting to murder under the second pan of Section 304 I.P.C. and sentenced to rigorous imprisonment for five years. The learned Judge was of the view that the accused was entitled to the benefit of Exception I to Section 300 of the Indian Penal Code in that he had stabbed his, wife to death whilst deprived of the power of self-control by the grave and sudden provocation given by her. The contention of the learned Public Prosecutor that on the facts and in the circumstances of this case, the learned Sessions Judge was in error in bringing the case within the ambit of Exception 1 to Section 300 I.P.C. It may be mentioned here that the accused has not appealed against the conviction and sentence.
2. The facts are simple and are as follows: The deceased Mnriamma was the daughter of P.W. 1 (Muggala Frakasam), a resident of Suddamalla village in Kurnool district. She was married to the accused about eight years prior to the occurrence which took place on 29th February, 1960. The accused is also P.W. 1's sister's son. He belongs to Chinna Kommerala Village in Cuddapah district and the distance between the two villages is about thirteen miles. The accused and the deceased were living at Chinna Kommerla ever since their marriage. They had two children - a son and a daughter. Some five months before the occurrence, the accused had gone over to Suddamalla with his wife and children to find work as there were famine conditions in his native district. At Suddamalla the accused and the deceased were living in a vacant house belonging to the brother of P.W. 1.
About fifteen day, prior to the occurrence the accused and the deceased went back to their own village. Six days later, the accused went to Harivaram village as there was demand for labour over there. Two days later, one Rajanna, a relation of the accused found the two children of the accused abandoned by the deceased. She had apparently left them behind and 20ne away Somewhere. He went and reported the die matter to P.W. 1 and also to the accused. A panchayat was held in that connection. The deceased woman, who had eloped with one Chinna Rami Reddy of Suddamalla, was brought back and the panchayatdars decided that the accused and the deceased should live together at Suddamalla in a house next to that of P.W. 1. Accordingly, the accused, the deceased and their children were residing at Suddamalla.
3. The occurrence took place three days later. On that day, i.e., 29th February 1960, the parents of the deceased (P.W. 1 and his wife) had gone to their field to pick cotton. P.W. 2 (Mugala Danam), aged about ten, the second son of P.W. 1, was at home. He was sitting on the Pial in from of the house in which the accused and the deceased were living and wag making ropes out of fibre. At that time, the accused also was sitting by the side of P.W. 2. The deceased was preparing jonna bread inside the house. As to what happened thereafter, was spoken to by P.W. 2 and he is the principal eye-witness. This is what he said.
The deceased and the accused ate the bread. They were talking. After talking for sometime the accused went into the village. He returned drunk. Then my sister was suckling her child at the threshold. The accused asked her to get tip so that they might go to Chinna Kommerla, which is the native place of the accused. The deceased replied that she would start after my parents returned from the field. Then he taunted her by saying that her paramours might be preventing her. They came to grips. Each held the other by the tuft of hair. The accused whipped out a dagger from his waist and began to stab the deceased. I was afraid and ran away to my parents. I did not see anyone in the neighbouring houses. I told my parents that the accused was stabbing the deceased. All of us were coming back. We saw the accused running away in the direction of Mayaloor with blood-stained clothes. We found the deceased lying dead at the mortar in front of my house.
In cross-examination, the witness stated that after going into the village, the accused came back within half an hour and on account of the smell, he detected that the accused was drunk. The accused and the deceased quarrelled for about fifteen minutes and subsequently for about fifteen minute, they pulley each other's tuft of hair. The accused stabbed the deceased five or six times when the witness was present, The deceased placed the baby on the ground before she was pulled. The witness added:
The murder took place in the scuffle between the deceased and the accused.
4. P.W. 3 is also an eye-witness but he saw only the later stages of the incident. He spoke to the, accused catching hold of the tuft of hair of the deceased with his left hand and stabbing her with a dagger held in his right hand.
5. P.W. 1, father of the deceased, corroborated the evidence of P.W. 2. He deposed that his son, P.W. 2 came running at about 10 a.m. on the day of the occurrence and told him that the accused was stabbing the deceased. P.W. 1 and his wife ran towards the village and on the way they saw the accused running away towards Mayaloor village with a dagger in his hand and with his clothes blood-stained. When they reached the house in which the accused and the deceased had been living, they found their daughter lying dead in a pool of blood. P.W. 1 then went and gave a report to the village munsiff, P.W. 7. It is Ex. P-1. P.W. 1 also spoke about the elopement of his daughter, the deceased, with, Chinna Rami Reddy and about the subsequent panchayat. The witness added that the accused and the deceased ?were quarrelling now and then as the accused suspected the deceased's conduct.
6. The autopsy on the dead body was conducted by P.W. 4, the Civil Assistant Surgeon attached to the Koilkuntla Hospital. He found the following twenty-two incised wounds on the body of the deceased.
List of injuries omitted.....
7. Thus the medical evidence establishes that the attack on the deceased was a most ferocious one resulting in as many as twenty-two incised wounds.
8. The plea of the accused was one of denial coupled with a suggestion that China Rami Reddy might have been the murderer. This is what he stated:
Kulur Chinna Rami Reddy, resident of Suddamalla village, who abducted my wife, ?came to my house when I and my wife started to go to Chinna Kommerla, and came upon me raising a dagger and saying that ho spent Rs. 200/- for my wife and questioning 'would she go with me.' I caught hold of that dagger. My hand was cut. When my hand was cut,, not knowing what to do, I ran away to Chinna Kommerla.
9. The learned Sessions Judge rejected this plea as baseless and wholly untenable and he had no hesitation in accepting the direct testimony of P.Ws. 2 and 3. It is to be noticed that the accused himself did not put forward the plea of grave and sudden provocation. In this situation, the sole question for determination in this appeal is whether from the circumstances appearing in the prosecution evidence itself, it is possible to spell out a case of grave and sudden provocation as would reduce the offence committed by the accused from murder to one of culpable homicide not amounting to murder.
On this aspect of the case, the evidence of P.W. 2 alone can have a bearing. According to him, the accused and the deceased had had their food together and were talking to each other for some time in an amicable way. The accused had then gone into the village and come back drunk. Straightway he insisted on the deceased following him at once to his village, Chinna Kommerla. The deceased said that she would go with him after her parents returned from the field. This drew out a report from the accused that perhaps her paramours were standing in the way of her leaving Suddamalla village. The accused then assualted the deceased and the latter placing the baby, which she had in her arms, on the ground, grappled with the accused. A scuffle ensued, each holding the other by the tuft of hair. In the course of the scuffle, the accused suddenly whipped out a dagger from his waist and began to slab the deceased indiscriminately. He inflicted as many as twenty-two injuries - some on the face, some on the chest, some on the back and some on the arms and hands. It was a merciless attack on a helpless woman and she died instantaneously.
10. On these facts, it is difficult to see how it can be said that the deceased had given grave and sudden provocation to the accused. She did not even refuse to accompany the accused to his village. All that she said was that she would start after her parents returned from the field. The accused Was apparently in a quarrel-Some mood after having had a drink and so he taunted her that her paramours were preventing her from going with him. Evidently he had in mind the prior conduct of the deceased, namely, her elopement with Chinna Rami Reddi. The scuffle which ensued between him and the deceased by each holding the other's hair, was occasioned by him; and even assuming be had received some provocation because of the scuffle, it cannot possibly be said that it was grave and sudden so as to warrant his whipping out a dagger which he had apparently kept concealed in his waist, and launching a savage and determined attack on a defenceless woman.
(10A) Exception I to Section 300, Indian Penal Code, so far as it is material for purposes of this case, runs thus:
Exception I: 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 above exception is subject to the following provisos:
First: That the. provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly: xx xx xxThirdly: That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation: Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
11. It will thus be seen that in order to attract this Exception, the provocation must have been given by the victim and it must have. been both grave and sudden. It is a question of proximity and degree. Furthermore, the provocation must have, by its gravity and suddenness, deprived the offender of the power of self-control. He cannot claim the benefit of the Exception if he had worked himself into a rage without sufficient provocation, or acted in a spirit of revenge for a wrong or a supposed wrong committed by the victim sometime in the past. In the words of Viscount Simon L.C. in Mancini v. Director of Public Prosecutions 1942 AC 1 at p. 9:
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.... The test to be applied is that of the effect of the provocation on a reasonable man,...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.
12. To the same effect was the language employed by Devlin J., in his charge to the jury in a case in which a plea of provocation was raised. The direction given by the learned Judge was described as 'classic' by Lord Goddard C.J., in delivering the judgment of the Court of Criminal Appeal in the same case on appeal - R. v. Duffy 1949-1 All ER 932n. In that case a young woman was charged with the murder of her husband. She had been subjected to brutal treatment by him. On the night of the offence, there had been quarrels and blows had been struck. The wife had wished to take their child away and the husband had prevented her. The wife then left the room for a short while and changed her clothes, and eventually, when her husband was in bed, she returned with a hatchet and a hammer, with both of which she struck him. For the defence it wag pleaded that the woman had acted under provocation, but the jury having been directed by the Judge as to what constituted provocation sufficient to reduce murder to manslaughter, found the woman guilty of murder. The Court of Criminal Appeal dismissed the appeal preferred by the woman. Devlin, J., had directed the jury in the following terms:
Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. Let me distinguish for you some of the things which provocation in law is not. Circumstances which merely predispose to a violent act are not enough. Severe nervous exasperation or a long course of conduct causing suffering and anxiety are not by themselves sufficient to constitute provocation in law. Indeed, the further removes an incident is from the crime, the less it counts. A long course of cruel conduct may be more blameworthy than a sudden act provoking retaliation but you are not concerned with blame here - the blame attaching to the dead-man.... It does not matter how cruel he was, how much or how little he was to blame, except in so far as it resulted in the final act of the accused. What matters is whether this girl had the time to say: 'Whatever I have suffered, whatever I have endured, I know that Thou shalt not kill.' That is what matters. Similarly, as counsel for the prosecution has told you, circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a, sudden temporary loss of self-control which is of the essence of provocation.... Provocation being, therefore, as I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind. That is why most acts of provocation are cases of sudden quarrels, sudden blows inflicted with an implement already in the hand, perhaps being used, or being picked up where there has been no time for reflection. Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation - that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. Fists might be answered with fists, but not with a deadly weapon, and that is a factor you have to bear in mind when you are considering the question of provocation.
13. Applying the aforesaid tests to the facts of the present case, we are clearly of the opinion that the learned Sessions Judge fell into a grave error in bringing the case within Exception I to Section 300, I.P.C. The two decisions relied on by the learned Judge do not throw any light on the correct approach to a plea of provocation. The first of these cases in In Re Sannimalai Goundan 27 Cri LJ 1192 (Mad). In the course of a sudden fight between two sets of persons armed with knives, one of the accused had inflicted a fatal blow on the member of the opposite group and it appeared from the evidence that the accused who had inflicted the blow had himself received injuries. On those facts, the learned Judges held that Exception 4 to Section 300, I.P.C. applied and not Exception 1.
In the second case - Emperor v. Mendi Ali AIR 1941 All 310 - Braund J. was dealing with the question of sentence and was of the view that the trial Judge had erred in taking into consideration the number of injuries inflicted by the accused in determining the quantum of punishment, after having found that the accused had been deprived of self-control by reason of the grave and sudden provocation given by his wife. There, the established facts were that the accused had come across his wife in the act of adultery with another man and had caused her death by inflicting as many as 33 injuries with a lathi. The trial Judge had convicted the accused under Part I of Section 304, I.P.C. and sentenced him to undergo ten years' rigorous imprisonment and to pay a fine of Rs. 100/-. Braund J. was of the view that the sentence wag excessive and so reduced it to five years' rigorous imprisonment and cancelled the fine. It was in this connection that the learned Judge made the following observation:
It appears to me to be verging on the illogical to say that a man has been so sorely provoked as to have been deprived completely of his power of self-control - and that is what the Judge has found - and at the same time to sentence him to a maximum punishment under Section 304, I.P.C.... And it is, I think, a confusion of thought to permit in such circumstances the nature or number of the blows given to count in assessing what punishment should be given. Ex hypothesi, the man had no control of himself, and for that reason alone it appears to me that the number and nature1 of the injuries inflicted must necessarily lose their significance.
14. While it may be true that the number of blows struck by a person who is found to have been deprived of the power of self-control, should not influence the measure of punishment yet the number of injuries inflicted by an offender would be a relevant factor in determining whether the attack was sudden and impulsive or was calculated and vengeful, which in turn would have a bearing on the question whether the offender had in fact been deprived of the power of self-control when he caused the death of the victim.
15. In the present case, the provocation, it' any, given by the deceased woman, was by no means grave and sudden, and the brutal attack by the accused had no reasonable relationship to the provocation. It follows that the offence committed by the accused is murder and nothing short of murder.
16. The appeal is, therefore, allowed; the conviction and sentence recorded by the lower court are set aside; instead, the accused is convicted under Section 302 I.P.C. and sentenced to imprisonment for life.