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Guriya Bucha Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 478 of 1960
Judge
Reported inAIR1962Guj39
ActsIndian Penal Code (IPC), 1860 - Sections 99, 100, 300 and 302
AppellantGuriya Bucha
RespondentState of Gujarat
Appellant Advocate K.T. Pathak (appointed), Adv.
Respondent Advocate B.R. Sompura, Asst. Govt. Pleader
DispositionAppeal dismissed
Cases ReferredAttorney General of Ceylon v. Kumarasingnege Den John Perera
Excerpt:
.....against conviction under section 302 - contended that deceased attempted to commit unnatural offence on appellant and exception 1 of section 300 would be available to him - appellant's statement suggest that he lost temper after stick blow given by deceased not at that time when deceased removed his 'langoti' - injuries did not commensurate degree of loss of self control - appellant not entitled to benefit of exception 1 of section 300 - injuries inflicted with intention to cause bodily injury to deceased sufficient in ordinary course of nature to cause death - conviction upheld. - - they were, therefore, admittedly on good terms. it is clearly no case of acquittal. code, if the other requirements are satisfied. in applying the test, it is of particular importance (a) to..........assuming that it was an attempt to commit an unnatural offence, mere attempt would not amount to grave provocation although the commission of an unnatural offence may amount to grave provocation.11. the learned counsel for the appellant relied on kadir baksh v. emperor, 23 cri lj 563 : (air 1920 lah 501), where it was held that the provocation received by the accused was grave and sudden, and he continued to be under the influence of provocation until he had killed his wife, and that he was entitled to the mitigation provided in exception (1) to section 300 of the penal code, as that exception does not contemplate that, in order to entitle an accused person to cam the mitigation the act must immediately follow the provocation. with great respect, we agree with the observation that acts.....
Judgment:

Raju, J.

1. This is a criminal appeal by one Guriya Bucha of Sanala, Taluka Chhota Udepur, who was convicted under Section 302, Indian Penal Code, for having caused the death of one Bhikhala aged about 14 years on the afternoon of 25-3-1960.

2. The prosecution case was that on that afternoon, the accused who is aged about 18 years, and the deceased, who was aged about 14 years, went out together to graze their cattle. At the time of returning in the evening, the accused asked the deceased to bring up all the cattle at oneplace to be taken home. The deceased refusedto do so and gave a stick blow on the leg of theaccused. The accused then shot two arrows atthe deceased injuring him in the chest. Thelatter fell down and thereafter the accused causedsome more injuries to the deceased, who diedwithin a very short time thereafter,

* * * * * *

3-8. In his examination at the Sessions trial, the accused pleaded not guilty. According to him, the deceased tried to commit unnatural offence against him and gave him a stick blow, where upon he lost his head and does not know what transpired thereafter. At the Sessions trial, it was argued op his behalf that the appellant was entitled to the benefit of Exceptions 1 to 5 of Section 300, Indian Penal Code. (After considering the evidence his Lordship concluded:) We, therefore, agree with the finding of the learned Additional Sessions Judge that it was the appellant who caused the injuries which resulted in the death of Bhikhala.

9. As regards the circumstances, in which the offence seems to have been committed, in his examination at the Sessions trial the appellant has stated as follows :

'We both were sleeping a little away from each other. The deceased removed my Langoti and sat over me. I asked him not to do such a thing. He then gave me a slick blow. I lost my balance of mind. I do not know what happened thereafter. I ran away.'

It is, therefore, contended that the deceased was attempting to commit an unnatural offence on the appellant, and that Exception 1 to Section 300, Indian Penal Code, would apply to the facts of the instant case. It is also a fact that there was no enmity between the deceased and the appellant and both had gone to the field to graze their cattle. They were, therefore, admittedly on good terms. According to the prosecution, the quarrel arose out of a controversy as to who should bring all the cattle at one place. Ordinarily it is very unlikely that on such grounds a serious injury would be inflicted on the deceased. There were nine arrow injuries on the deceased, and three of them were each sufficient in the ordinary course of nature to cause death. It is; therefore, contended that the incident must have happened as a result of the attempt on the part of the deceased to commit an unnatural offence on the appellant. If it is a case of an assault with the intention of gratifying unnatural lust, the right of private defence of the body would arise under Section 100, Indian Penal Code, and would extend, under the restrictions mentioned in Section 99, Indian Penal Code, to the voluntary causing of death or of any other harm to the assailant. One of the restrictions mentioned in Section 99, Indian Penal Code, is that the right of private defence does not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In the instant case, however, three fatal injuries were inflicted on the deceased, and it cannot be said that there was any right of private defence to inflict all the fatal injuries. The right of private defence, if any, assuming for a moment, the defence version to be true, would have come to an end after the infliction of the first injury sufficient in the ordinary course of nature to cause death. After Bhikhala had been disabled, there would not remain any further right of private defence, and the injuries inflicted thereafter would not be saved by any right of private defence. In view of the fact that there were three injuries each of which was sufficient in the ordinary course of nature to cause death, the appellant would be guilty under Section 302, Indian Penal Code, for having caused the death of the deceased Bhikhala by inflicting the second and third of these injuries,

10. It is, however, contended by the learned counsel for the appellant that this is also a case of grave and sudden provocation and that in such a case death can be caused without any limitation. If P discovers Q committing adultery with the former's wife that would be grave and sudden provocation. Similarly, if a person discovers another person committing an unnatural offence, that would be grave and sudden provocation. The decision in R. v. Fisher, (1837) 8 C and P. 182, is summarised by Russel on Crime, Eleventh Edition by J. W. Cecil Turner, p. 592, thus :

'The prisoner, Fisher, was indicted for the murder of one Randall, who, the day before, had been discovered by a third person committing an unnatural offence (at that date a capital crime) with the prisoner's fifteen year old son. Counsel for the prisoner submitted that this case was one without parallel but that it ought to be treated on the same footing as the adultery of a wife, being indeed more serious since the boy was thereby exposed to capital punishment. Park J. in summing up said, 'I believe that such a case as the present in its circumstances never occurred before ........ If this man had seen the thing happen,and had at that moment inflicted the injury. I should have rather inclined to think that it would have been within the rule in that case' (i.e. adultery) 'at least I should have reserved it for the opinion of the Judges ......... In all cases theparty must see the act done ........ In this casethe father only heard of what had been done from others. I say, therefore, and I do it with the assent of those who were with me, that there is not enough to reduce the offence from murder to manslaughter. We think there is not sufficient provocation to reduce this offence even to manslaughter. It is clearly no case of acquittal. I think, that, from the prisoner's carrying the instrument about him, it is clear that he meditated! an attack upon the deceased''.'

The instant case is not a case of the commission of an unnatural offence. What is urged is that there was an attempt to commit an unnatural offence. The statement made by the appellant in his examination at the Sessions trial does not, even if accepted, indicate that an attempt had been made to commit an unnatural offence. The appellant docs not say that the deceased had removed his own Langoti. If the Langoti of the appellant had been untied, that might have been a case of indecent assault. In arty case, even assuming that it was an attempt to commit an unnatural offence, mere attempt would not amount to grave provocation although the commission of an unnatural offence may amount to grave provocation.

11. The learned counsel for the appellant relied on Kadir Baksh v. Emperor, 23 Cri LJ 563 : (AIR 1920 Lah 501), where it was held that the provocation received by the accused was grave and sudden, and he continued to be under the influence of provocation until he had killed his wife, and that he was entitled to the mitigation provided in Exception (1) to Section 300 of the penal Code, as that exception does not contemplate that, in order to entitle an accused person to cam the mitigation the act must immediately follow the provocation. With great respect, we agree with the observation that acts done by a person when he continued to be under the influence of grave and sudden provocation would fall under Exception (1) to Section 300, I. P. Code, if the other requirements are satisfied. But this principle has BO application to the facts of the instant case.

12. The next case relied on by the learned counsel for the appellant is the case of R. v. Mc Carthy, (1954) 2 WLR 1044 : 1954-2 All ER, 262. In that case the defence of the prisoner was that he had gone up the side road to relieve himself, that Rees had there got hold of his penis, and, on being pushed away, invited the appellant to commit sodomy with him. This, the appellant said, so provoked him that he went raging and hit him, after which his memory was vague. In this case, Lord Goddard, C. J. made the following observations:

'In Mansini v. Director of Public Prosecutions, ((1942) AC 1) Viscount Simon L. C. in stating the opinion of the House, said ((1942) AC 1 at p. 9) : 'It is not all provocation that will reduce the crime of murder to manslaughter ...... The testto 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 (a) to consider whether a sufficient interval bas 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.' In Holmes v. Public Prosecutions Director, 1916 AC 588, the same Lord Chancellor said ((1946) AC 588 at p. 599), 'The distinction, therefore, is between asking 'Could the evidence support the view that the provocation was sufficient to lead a reasonable person to do what the accused did?' (which is for the Judge to rule) and assuming that the Judge's ruling is in the affirmative, asking the jury: 'Do you consider that, on the facts as you find them from the evidence, the provocation was in fact enough to lead a reasonable person to do what the accused did?''. It is also observed that an excitable pugnacious person may be more easily provoked than a man of quiet or phlegmatic disposition, but the former cannot rely upon his excitable state of mind if the violence used is beyondthat which a reasonable or an average person would use to repel an act which can in law be regarded as provocation. If a man who is provoked retaliates with a blow from his list on another grown man, a jury may well consider and probably would that there was nothing excessive in the retaliation even though the blow might cause the man to fall and fracture his skull, for the provocation might well merit a blow with the fist. It would be quite another thing, however, if the person provoked not only struck the man, but continued to rain blows upon him or to beat his head on the ground as happened in that case.

12a. This decision lays down that the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. The same principle is enunciated in R. v. Duffy, 1949-1 All ER 932n, where Lord Goddard, made the following observations:

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 on a long course of conduct causing suffering and anxiety are not by themselves sufficient to constitute provocation in law. Similarly, circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenue 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 bring, therefore, as I havedefined 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 cut, 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.'

These principles of criminal law are no doubt sound but they are principles of English Common Law. Indian criminal law on the point of death caused as a result of provocation is statutory law found in Exception 1 to Section 300, I. P. Code. We have to deduce principles from the language of the statute. The exact English principle can often be deduced from the language of the Indianstatute. But if the exact English principle cannot be deduced but a very similar principle or a different principle can be deduced from the language of the Indian statute, we must follow the principle that can be deduced from the language of the Indian statute aS observed by their Lordships of the Privy Cuncil, with reference to the Ceylon Penal Code,

'that Code does not provide for any doctrines of English law to be imported into the criminal law of Ceylon, The question that falls for decision is one which depends entirely on the true construction of Section 294 of the Ceylon Penal Code.'

13. For similar reasons, in India the question depends entirely on the true construction of Exception 1 to Section 300, Indian Penal Code.

14. Exception 1 to Section 300, Indian Penal Code, provides that 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 a person who gave the provocation or causes the death of any other person by mistake or accident. The proviso to Exception 1 to Section 300, I. P. Code, need not be considered in the instant case. The Exception applies only if death is caused during the time the offender is deprived of the power of self control as a result of grave and sudden provocation. The degree of the loss of power of self-control envisaged is that of a reasonable person having regard to the degree of gravity of the provocation. If the degree and duration of the loss of the power of self-control are not commensurate with the degree of gravity of provocation, the benefit of Exception 1 to Section 300, I. P. Code, cannot, be availed of by the offender. The language of Exception I will also not apply if the violence used by the offender which resulted in the death of a person has no reasonable relation to the degree and duration of the loss of the power of self-control that can be reasonably expected in the case of a normal person having regard to the exact nature of the grave and sudden provocation caused. These principles can be deduced from the language of Exception 1 to Section 300, I. P. Code, with special reference to the expressions 'causes death' and 'whilst deprived of the power of self control by grave and sudden provocation'. If death is the result not entirely of the deprivation of the power of self-control by grave and sudden provocation but is the result of a combination of the deprivation of self-control and of the spirit of revenge or anger, then the exception would not apply. As the wording of Exception 1 shows the death must be entirely due to the deprivation of the power of self-control which in turn must be due to and must have a proper relation to the grave and sudden provocation. The standard for the loss of self-control is of course that of an average reasonable normal person.

15. The principle which can be inferred from the language of Exception 1 to Section 300, I. P. Code, is that if the Exception is to apply, the violence used by the offender which resulted in the death of a person must have a reasonable relation to the degree and duration of the loss of power of self-control that can be reasonably expected in the case of a normal person having regard to the exact nature of the grave and sudden provocation caused, provided the other requirements of the Exception are fulfilled. This principle has been stated in slightly different manner in the English cases cited above and by their Lordships of Privy Council in Attorney General of Ceylon v. Kumarasingnege Den John Perera, (1953) 2 W. L. R 238, where their Lordships have observed as under:

'The words 'grave' and 'sudden' are both of them relative terms and must at least to a great extent be decided by comparing the nature of the provocation with that of the retaliatory act. It is impossible to determine whether the provocation was grave without at the same time considering the act which resulted from the provocation, otherwise some quite minor or trivial provocation might be thought to excuse the use of a deadly weapon. A blow with a fist or with the open hand is undoubtedly provocation and provocation which may cause the sufferer to lose a degree of control, but will not excuse the use of a deadly weapon, and in the opinion of their Lordships it is quite wrong to say that because the Code does not in so many words say that the retaliation must bear some relation to the provocation; it is true to say that the contrary is the case.'

This is, however, a case under Section 294 of the Ceylon Penal Code, which as observed in (1953) 2 WLR 238 provides an exception in these terms: Culpable homicide is not murder if the oftender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of any other person by mistake or accident.' It also provides that 'whether the provocation, was grave and sudden and sudden enough to prevent the offence from amounting to murder is a question of fact'. The law of Ceylon is substantially identical with the law of India contained in the Indian penal Code. In 1954-2 WLR 1044 at p. 1048 it is also observed that the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. The principle deduced from Exception 1 to Section 300, Indian Penal Code, has to be applied to the facts of the instant case.

16. In the instant case, it is evident from the statement of the appellant himself in his examination at the Sessions trial that the deceased Bhikhala had not actually committed any unnatural offence. In the statement it is said that the deceased removed the appellant's Langoti and sat over him. The appellant asked him not to do such a thing. Deceased Bhikhala then gave a slick blow to the appellant whereupon he lost his temper and his head. That statement would suggest that the appellant lost his temper after the stick blow and not before. Appellant did not say that he lost his temper when deceased removed his Langoti and sat over him. A stick blow is not grave provocation. This is, therefore, not a case of the loss of the power of self-control by grave and sudden provocation. The injuries were not commensurate with the degree of loss of self-control that can be expected in an average person having regard to the nature of provocation, even if we hold -- which we do not -- that an attempt to commit sodomy amounts to grave and sudden provocation and even if we hold that there was such anattempt. For these reasons, the appellant is notentitled to the benefit of Exception 1 to Section 300,Indian Penal Code, and it must be inferred thatthe appellant had caused injuries with the intention to cause bodily injuries to the deceased sufficient in the ordinary course of nature to causedeath. The offence, therefore, amounts to murder,and the learned Additional Sessions Judge hasrightly convicted the appellant under Section 302,Indian Penal Code, and awarded him the lessersentence of imprisonment for life, having takeninto consideration his young age, namely 17 years.

17. We, therefore, confirm the conviction of the appellant under Section 302, Indian Penal Code, and the sentence of imprisonment for life passed on him under that Section, and the appeal is dismissed.


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