V.V. Bedarkar, J.
1. Both these appeals are directed against the judgment and order of the learned Sessions Judge, Jamnagar, in Sessions Case No. 47 of 1980 by which he convicted the accused Bhand Jusab Mamad for the offence punishable under Section 304, Part I of the Indian Penal Code and sentenced him to R. I for four years but acquitted him for the original offence punishable under Section 302 of the Indian Penal Code.
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3. Being aggrieved by the acquittal of the accused for the offence punishable under Section 302, Indian Penal Code, the State has come in appeal being Criminal Appeal No. 1369 of 1980 with a grievance that the conviction should have been under Section 302 of the Indian Penal Code; while the accused filed Criminal Appeal No. 409 of 1981 from jail against the order of his conviction. We, there-fore, propose to decide both these appeals by this judgment because they are directed against one and the same judgment.
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12. Therefore, the appeal filed by the accused being Criminal Appeal No. 409 of 1981 deserves to be dismissed.
13. Then comes the question about the appeal filed by the State. We have already seen that there were as many as eight injuries on the deceased. It was, therefore, the endeavour of Mr. Tak-wani, the learned Public Prosecutor, to show that the accused had given blows to the deceased in a brutal manner.
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The learned trial Judge considered the availability of Exception I to Section 300 and came to the conclusion that the accused acted on grave and sudden provocation and was deprived of the power of self-control. For this, the learned trial Judge relied on the evidence of the witness Ramesh that even after Latif separated the accused and deceased, the deceased continued to give filthy abuses. Vahab Ex. 17 stated in his evidence that the deceased had given filthy abuses to the accused. The same is the story given by witness Mansur Ex. 18. But Ramesh alias Adaro Ex. 20 has stated something more and that too in examination-in-chief itself that after Latif took away Jusab, Jusab came back; but he has given reasons that Jusab came back because Bodu abused him. In paragraph 4 also, he stated that deceased Bodu was giving abuses to the accused by his mother and sister. The same story about the deceased giving abuses to the accused by mother and sister is stated by other, witnesses. On this consideration, the learned trial Judge came to the conclusion that there was grave and sudden provocation and the accused gave the blows when he lost self-control.
14. Mr. Takwani, the learned Public Prosecutor, submitted that even though he would dispute whether giving the abuses by motherland sister would amount to grave and sudden provocation so as to lose the self-control, - initially submitted that this aspect would have been available to the accused if the incident would have happened on the spot. According to Mr. Takwani, the prosecution case is clear that when the verbal exchanges were going on, Latif separated and took away the accused and there-after he came and gave blows and therefore, as there was a gap in between the first incident and the second incident, it cannot be said that there was grave and sudden provocation. We cannot lose sight of the fact that the evidence clearly shows that the accused immediately returned and not that there was some time and thereafter he returned. Clearly the case of Latif is that he took the accused to some distance but he again returned, and it is clear case of Ramesh alias Adaro, Ex. 20, that the accused returned because the deceased continued giving him the abuses. So, on this first count, Mr. Takwani did not press much.
15. But, it is his submission that mere verbal abuses would not amount to grave and sudden provocation. In order to support his argument, Mr. Takwani relied on the decision of Division Bench of this Court in Sainik Kanaiyalal Kalumal v. The State (1962) 3 Gui LR 739. Therein it has been observed that a mere verbal abuse would not amount in law to grave and sudden provocation under the first exception to Section 300 of the Indian Penal Code such as to warrant fatal violence in retort. The facts were that one Assistant Sub-Inspector of the Railway Protection Force witness Rohitlal on 2nd July 1959 in the evening at about 8.00 when he was present at the roll call gave a general warning to the members,of the staff that he received a complaint that a Sainik of the Railway Protection Force was having a carnal intercourse with a cow and that such a thing should not happen again. Thereafter, because of the warning given by Rohitlal, on the next day, the accused asked the deceased whether he had unnatural intercourse with a cow. But, due to this, the deceased was enraged and replied 'Yes, I have done and I will do so even with your mother.' Because these words were uttered, the accused was said to have got enraged as he lost the self-control and, therefore, it was argued that this amounted to a grave and sudden provocation. But, this Court did not accept this contention on two counts. The first count which cannot be disputed, is that this Court held, on facts, that it was apparent that the accused was first to provoke the' deceased by asking him whether he had unnatural intercourse with a cow. This Court observed that putting such a question itself was to a Hindu, who worships 8 cow, an insinuation of a foul abuse, Under Exception I to Section 300 of the Indian Penal Code, it is provided that culpable homicide would not amount to 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 etc. But, this exception is subject to the first proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Because the accused put an insinuating question to the deceased about his having intercourse with a cow, this Court considered that the accused himself sough ; the provocation by provoking the deceased into the retort because the accused himself first used a very foul abuse and therefore, this Court considered that there was no grave and sudden provocation. But further, this Court considered that '...it is difficult for us to take the view that mere verbal abuse would amount to grave and sudden provocation under exception 1 to Section 300.' In this connection, this Court referred to Holmes v. Director of Public Prosecutions, 1946 (2) All ER 124, before the Court of Appeal where Viscount Simon observed '... constantly repeated statement in the old books that 'mere words' not being menace of immediate bodily harms do not reduce murder to manslaughter is to be understood.' Thereafter other decisions were considered but the main stress was on the above-referred to decision of Holmes v. Director of Public Prosecutions.
16. But, Mr. Naik referred to the decision of the Supreme Court in the case of K. M. Nanavati v. State of Maharashtra : AIR1962SC605 , and submitted that, in view of the decision of the decision of the Supreme Court in the above referred case of K.M. Nanavati, the decision of this Court is no longer good law. It must be said to the credit of Mr. Takwani that he also referred to this decision trying to show to us the correct position of law. It is clear that the decision of the Supreme Court was not brought to the notice of this Court when the above referred to decision in (1962) 3 Gui LR 739 was given. Not only that, but the decision of this Court was based on the English decision; while in K. M. Nanavati's case the Supreme Court reviewed the entire law on the point of grave and sudden provocation from the point of view of English decisions and also the Indian law. The Supreme Court considered the case of Mancini v. Director of Public Prosecutions 1942 AC 1 at page 9 given by Viscount Simon, L.C. and also the decision of Goddard, C.J., in R. v. Duffy (1949) 1 All ER 932n, where the provocation was defined and was considered. In paragraph 21, the charge to the jury was considered wherein the reference was made to the decision of House of Lords in Holmes v. Director of Public Prosecutions 1946 AC 588 at p. 597 (which is equivalent to 1946 (2) All ER 124). V may be noted that the decision which was under challenge before the Supreme Court was the decision of J.M. Shelat, J. of Bombay High Court (as he then was) and the decision of the Gujarat High Court in case of Kanaiyalal (supra) was also of a Bench consisting of Justice J.M. Shelat (as he then was) and Justice R.B. Mehta; and the judgment was rendered by Mehta, J. A contention was raised before the Supreme Court as emerges from paragraph 21 that there is an essential difference between the law of England and the law of India in the matter of the charge to the jury in respect of grave and sudden provocation. And thereafter it was contended that, whatever might be the law in England, in India we are governed by the statutory provisions and that under the explanation to Exception I to Section 300 of the Penal Code, the question whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is one of fact, and therefore, unlike in England, in India both the aforesaid questions fall entirely within the scope of the jury and they are for them to decide.
17. On overall consideration of the English decisions, a passage from the address of Baron Parks to the jury in R. v. Thomas (1837) 7 C & P 817, was reproduced as extracted in Russell on Crime, 11th Ed., Vol. I at p. 593, which is to the following effect:
But the law requires two things: first that there should be that provocation; and secondly, that the fatal blow should be clearly traced to the influence of passion arising from that provocation.
From that passage, the Supreme Court deducted the following principles:
(1) Except in circumstances of most extreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary loss of self-control; and it must be distinguished from a provocation which inspires an actual intention to. kill. (3) The act should have been done during the continuance of that state of mind, that is, before there was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to the influence of passion arising from the provocation.
After considering these principles, in paragraph 82 the Supreme Court observed that 'On the other hand, in India, the first principle has never been followed.' It was observed that 'That principle has had its origin in the English doctrine that mere words and gestures would not be in point of law sufficient to reduce murder to manslaughter. But the authors of the Penal Code did not accept the distinction.' And thereafter the following observations of the authors of the Penal Code are reproduced:
It is an indisputable fact, that gross insults by word or gesture have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but a proof that he is a man of peculiarly bad heart.
It was specifically observed by the Supreme Court that the Indian Courts have not maintained the distinction between words and acts in the application of the doctrine of provocation in a given case. And thereafter, the Supreme Court considered and observed:
The Indian law on the subject may be considered from two aspects, namely,
(1) whether words or gestures unaccompanied by acts can amount to provocation, and
(2) what is the effect of the time lag between the act of provocation and the commission of the offence.
The Supreme Court, therefore, clearly considered that the import of English decisions into the question of 'grave and sudden' provocation in Indian law is riot advisable because in English law verbal abuses are not considered to be the cause for 'grave and sudden' provocation; while Indian law is entirely different. So, the application of English ruling in the case of Kanaiyalal (1962) 3 Gui LR 739 (supra) by the Gujarat High Court was not in consonance with the Indian law as held by the Supreme Court. The Supreme Court, in terms, specifically considered that there cannot be any distinction between a 'mental injury' as compared to 'physical injury'. Both may be causes for depriving a person of self-control and also causes for 'grave and sudden' provocation. Giving abuse or making gesture would certainly disturb a man mentally, causing a mental injury; while physical violence would result in physical injury. The English law merely accepted the second aspect and not the first. The Supreme Court in paragraph 85 of its judgment in case of K.M. Nanavati 1961 (1) Cri LJ 521 (SC) (supra) summarized the law as follows:
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 Indian penal Code. (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.
In the instant case before us, the deceased and the accused belonged to the same strata of society being young boys of Mohmedan community. Ah abuse by mother or sister would certainly be an abuse which would not be tolerated by such young boys and therefore, it can be said that there will be every cause for 'grave and sudden' provocation considering the class of society to which the accused belonged. There is no question in the instant case of having any room and scope for premeditation and calculation because, after Latif took the accused to some distance, the accused immediately returned, meaning thereby, that his passion had not cooled down, and, when he returned, the deceased was still abusing him, and therefore, in our view, the act of the deceased would be certainly covered by Exception I to Section 300 of the penal Code, and, in view of this, the order of the learned trial Judge convicting the accused for the offence punishable under Section 304, Part I cannot be said to be improper.
18. It was argued before us by Mr. Takwani that if there would have been one or two blows, it would have been said that that was an act done under 'grave and sudden' provocation; but, according to him, when eight blows are given, it cannot be said that the 'grave and sudden' provocation continued till then. This argument ' is without any merit. We have already considered that because eight blows are given, the accused cannot get the benefit of Exception IV. It has been accepted by the Courts that when a person loses the self-control under 'grave and sudden' provocation, he loses all faculties of calculation and balance of mind and the Court would not weigh in golden scales as to how many blows would be sufficient to convince a Court that the act done by the accused was under 'grave and sudden' provocation and where he exceeded a particular number of blows, the act would be out of the category of 'grave and sudden' provocation. When one loses the mental faculty by gravely provoked, one would not go on calculating the blows. The very callous act of giving blows continuously clearly goes to show that the 'self-control' was lost under the shadow of 'provocation' and, therefore, the number of blows would never be material to consider the im pact on the mind of the accused so as to take him out of Exception I to Section 300.
19. In view of this, we come to the conclusion that the appeal filed by the State also requires to be dismissed.
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