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Madhavan Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal No. 249 of 1965
Judge
Reported inAIR1966Ker258; 1966CriLJ1267
ActsIndian Penal Code (IPC), 1860 - Sections 300
AppellantMadhavan
RespondentState of Kerala
Appellant Advocate Joseph Augustine and; P.V. Ayyappan, Advs.
Respondent AdvocateState Prosecutor
DispositionAppeal partly allowed
Cases ReferredK. M. Nanavati v. State of Maha
Excerpt:
.....only when the accused is shown to have been deprived of the power of self-control by grave and sudden provocation which is caused by the person whose death is caused. in applying the test, it is of particular importance to (a) 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. (4) the fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for..........appellant was such as to provoke a reasonable man to the extent of depriving him of his power of self-control and the provocation therefore was grave and sudden within the meaning of exception 1 to section 300 of the penal code. the law is now well established that exception 1 to section 300 can apply only when the accused is shown to have been deprived of the power of self-control by grave and sudden provocation which is caused by the person whose death is caused. the test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which he was placed would be so provoked as to lose his self-control and the provocation must be such as would upset not merely a hot-tempered or a highly sensitive person but.....
Judgment:

Krishnamoorthy Iyer, J.

1. The appellant Madhavan was convicted of the murder of his wife Madhavi under Section 302 of the I. P. C. and sentenced to the lesser penalty of imprisonment for life. In the nature of the contention of the appellant it is not necessary to state the prosecution case in detail. There was no eyewitness to the occurrence which took place on 18-1-1965. The learned Sessions Judge accepted in main the statement given by the appellant under Section 342 of the Criminal Procedure Code. The only point raised by the appellant's advocate before us was that the appellant is entitled to the benefit of Exception 1 to Section 300 of the I. P. C. The facts relevant for the purpose of considering the applicability of Exception 1 to Section 300 are stated below. There was a celebration on 18-1-1965 in the Anthiringa temple near the house of the appellant. He was a member of the committee in charge of the celebrations. At about 4 p.m. on 18-1-1965 he went to the temple with the chopper M. O. 1 to cut the overhanging branches of trees on the route through which the deity had to be taken in procession. In the night at about 9 p.m. the wife of the appellant went to the temple with the child along with her relations to witness the festival. At about 11 p.m. the appellant requested his wife to accompany him to his home so that he could have his bath and meals. She replied that they could go after some time. After some time the appellant called her again and both of them started from the temple to the house of the appellant. When they reached the common junction leading to the house of the appellant and also to the house where the parents of Madhavi wore residing. Madhavi suggested that they could go to her mother's house. The appellant agreed and both of them were proceeding towards her mother's house. On the way she began to abuse him and said that she would never go back to his house. The appellant wanted to know the reason therefor and took the child which was with his wife. Then his wife swore by Chirakkal Bhagavathi that she would never thereafter go and live with the appellant mid pulled the child towards her. The appellant was having the chopper M. O. 1 with him. When he resisted the deceased from taking forcibly the child from him the chopper injured her abdomen Then she broke her thali chain and threw it on his face. This infuriated the appellant who cut her with M. O. 1 which resulted in her instantaneous death This story was accepted by the learned Sessions Judge. The learned Judge also found that there was no previous enmity between the appellant and his wife and they were living amicably. The prosecution has no case that this was a pre-mediated murder In spite of these findings the learned Judge held that Exception 1 to Section 300 of the Indian Penal Code did not apply and convicted the appellant for the offence under Section 302. I. P. C.

2. It was argued on behalf of the appellant that the conduct of Madhavi towards the appellant was such as to provoke a reasonable man to the extent of depriving him of his power of self-control and the provocation therefore was grave and sudden within the meaning of Exception 1 to Section 300 of the Penal Code. The law is now well established that Exception 1 to Section 300 can apply only when the accused is shown to have been deprived of the power of self-control by grave and sudden provocation which is caused by the person whose death is caused. The test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which he was placed would be so provoked as to lose his self-control and the provocation must be such as would upset not merely a hot-tempered or a highly sensitive person but one of ordinary calmness.

3. The scope of the doctrine of provocation was stated thus by Viscount Simon in Manoini v. Director of Public Prosecutions, 1942 AC 1 at p. 9 thus:

'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, 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 to (a) 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.'

4. In the course of his spcach Viscount Simon in Holmes v. Director of Public Prosecutions 1946 AC 588 at p. 598, again laid down the law about the constituents of provocation in the following passage:

'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 an actual intention to kill, or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.' Lord Goddard, C. J. in A. G. of Ceylon v. Perera, 1953 AC 200 at p. 206, observed:

'The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation.'

The apparent conflict in the statement of law by Viscount Simon and the law as stated by Lord Goddard in the cases above referred to, was resolved in Lee Chun-Chuen v. Reginam. (1963) 1 All ER 73 at p. 77, where Lord Devlin following the dictum of Lord Goddard, C. J. in 1953 AC 200, observed thus:

'Giving the opinion of the Board, (1953 AC 200 at p. 206), Lord Goddard, C. J., said

'The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. Their Lordships think it right to re-affirm the law as stated by Lord Goddard and to do so with special reference to Viscount Simon's dictum, ((1946) AC 588 at n. 598), to which Lord Goddard did not advert. Lord Goddard's statement can be reconciled with the dictum only if the word 'actual' in the dictum is treated as the distinguished feature. Their Lordships do not think it necessary to interpret the dictum any further than to say that it cannot be read as meaning that the proof of any sort of intent to kill negatives provocation. Viscount Simon was evidently concerning himself with the theoretical relationship of provocation to malice and in particular with the notion that where there is malice there is murder; and he may have had it in mind that actual intent in the sense of premeditation must generally negative provocation.'

The statement of law as applicable to India is stated thus by their Lordships of the Supreme Court in K. M. Nanavati v. State of Maha-rashtra, AIR 1962 SC 605 at p. 629:

'Is there any standard of a reasonable man for the application of the doctrine of 'grave and sudden provocation No abstract standard of reasonableness can be laid down. 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 civilisation. 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.....

The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of 'grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) 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 Section 300 of the I. P. C. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.'

5. Bearing the above principles in mind itwill be seen that the threat of the wife to leavethe appellant for ever without obviously anyprior reason is indeed provocative and her actin removing the thali from her neck which isattributable to the separation of her marital tiewith the appellant and throwing it in his facewas quite sufficient to make him lose his self-control and give him the benefit of Exception 1to Section 300 of the Penal Code. Accordingly wegive the appellant the benefit of this Exceptionand convict him under Section 304, Part I of theIndian Penal Code instead of under Section 302.Taking all the circumstances into account andthe way in which the incident took place wefeel that the ends of justice will be satisfied bysentencing the appellant to undergo rigorousimprisonment for a term of five years in modification of the conviction and sentence enteredby the Court below against the appellant. Theappeal is dismissed in other respects.


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