EXCEPTION 1.
PROVOCATION
Coke drew a distinction between intentional killing in hot blood and an intentional killing when the blood was cool. The former was killing in provocation and was considered to be a less heinous kind of homicide than the latter
one done by a man who was in possession of his self-control. In order that provocation may be pleaded in partial defense to a charge of murder for mitigation of the offence four things are necessary:
1. there must be provocation;
2. provocation must be grave and sudden;
3. by reason of such grave and sudden provocation the offender must have been deprived of the power of self- control; and
4. the death of the person who gave provocation or of any other person, by mistake or accident, must have been caused. [Kanhaiya Lal; A.I.R. 1952 Bhopal 21.]
PROVOCATION
In order to avail of the protection, it is necessary that there should be provocation. What is provocation is determined in each case by the Court. Under Indian law provocation may be caused by words and gestures, but under English Law no provocation of words will reduce the crime of murder to that of man-slaughter. The only exception formerly known to English Law was the confession of a wife that she had committed adultery.
MATHAPPA GOUNDA, [A.I.R. 1954 MAD. 538.]
the wife of the accused was on terms of criminal intimacy with one Y. One day she was proceeding to Y's house with the object of continuing her criminal liaison. The accused tried to prevent her from going to Y's house, but she retorted in a defiant way and proceeded.
The accused caught her and brutally cut her several times with a sharp weapon and she died. It was held that the defiant tone of the wife's answer, though it might amount to provocation, was neither sufficiently grave nor surprisingly sudden, and therefore the accused was liable for murder.
However, finding of a spouse in the actual act of adultery or having just completed adulterous copulation have been held to be sufficient provocation. [Mangal, A.I.R. 1925 Nag. 37.] In such cases both the man and the woman committing adultery are held to give grave and sudden provocation so that causing the death of either of them will be culpable homicide.
PROVOCATION MUST BE GRAVE AND SUDDEN
Provocation under this exception must be both grave and sudden. [Kanhaiyalal, A.I.R. 1952 Bhopal 21.] It is sudden when there was no time, for the passion to cool down. [Khairati Ram. A.I.R. 1953 Punj. 241.] If the act was done after the first excitement had passed away, and there was time to cool, it is murder. [Lochan, (1886) 8 All. 635.] Provocation is grave if it is sufficient to rouse a person's passions. It must be either illegal or if legal then improper. The test of grave provocation is whether it would deprive a reasonable man of his power of self-control.
K.M. Nanavati v. State or Maharashtra, A.I.R. 1962 S.C. 605
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, In certain circumstances words and gestures may also cause grave and sudden provocation, 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,
MADHAVAN V. STATE OF KERALA, 1966 KER. L.T. 112.
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 lime, or otherwise giving room and scope for premeditation and calculation.
In a case A confessed (in the absence of X) to her husband H at about 2 p.m. that she had illicit intimacy with X. Enraged at the conduct of X, the husband went to a relation and borrowed his revolver and some cartridges on a false pretext, loaded the same, went to the flat of X at about 4.30 p.m., entered his bed room and shot him dead. Here H would not succeed in his plea of grave and sudden provocation because enough time has passed for the passion to cool down and secondly, because he had gone to his relation in search of a revolver to shoot X.
STATE OF U.P. V. LAKHMI, AIR 1998 S.C. 1007.
The accused killed his wife. He saw something lascivious between his wife and other person when he entered house from field. Giving the benefit of Exception I of section 300, I.P.C. and holding the accused guilty under section 304, Part I, I.P.C. the court observed:
"There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that the husband should have been hot-tempered or hyper sensitive to loose his equanimity by witnessing such scenes. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene."
OFFENDER DEPRIVED OF HIS POWER OF SELF-CONTROL
It must be shown that the act was done while the person doing it was deprived of the power of self-control under immediate impulse of the provocation. The power of self-control should not have been lost as a result of anger or other emotion. [Deoji Govindji, (1895) 20 Bom. 215.]
The provocation must be such as will upset not merely a hasty and hot-tempered or hyper-sensitive person but one of ordinary sense and calmness.
R had teased A's sister while she was in the field. Coming to know of it, A took a sword and went to R's residence. R, his mother and sister were present in the house when A reached there abusing them. He said that he would forcibly take away R's sister. The women got frightened and R's mother took her daughter inside a room and bolted the door. She then went forward with folded hands and requested A to pardon them. A immediately gave a blow on her neck with the sword in his hand and she fell down dead. At this R started running towards the fields. A chased him abusing. When A was still about 20 feel from him, R jumped into a well to save himself. R's head hit a hard substance in the well with the result that he lost consciousness and died of asphyxia due to drowning. In this case the act of teasing by R to A's sister was not of such a nature whereby it can be said that A chopped off R's mother's head under grave and sudden provocation so as to reduce his liability from murder to culpable homicide. Provocation even though sudden was not so grave as to deprive A of his power of self-control. So, A will be liable for murder of R's mother. But so far as the question of R's death is concerned it was not the direct result of any act done by the accused i.e. there was no causal connection. A's chasing cannot be said to be the cause of R's death, so he will neither be liable for murder nor for culpable homicide. But A will be liable for abetment to commit suicide.
FIRST PROVISO
This proviso requires that provocation must not have been sought by the accused, instead provocation must come to him. In a case the accused was told one night that his sister and her paramour were together in a house. He knew of their intimacy for a long time. On getting the above information he broke into that house with an axe and killed both of them. He was held liable for murder because the provocation was not sudden and it had also been sought by the accused. [Imam Baksh, A.I.R. 1937 Lah. 560.]
SECOND PROVISO
It is clear from second proviso that if the act is legal, any opposition to it would be illegal.
THIRD PROVISO
Provocation is not given by anything done in the lawful exercise of the right of private defense.
EXPLANATION
According to this explanation whether the provocation given was grave and sudden is a question of fact. That it is for the Court to see in each and every case whether the provocation given was grave and sudden or not
CASES
In case of confession of adulterous intercourse grave and sudden provocation may be pleaded in mitigation of punishment only when the woman concerned is the wife of the accused. It cannot be claimed where a woman was only engaged to be married [Palmer. (1913) 2 K.B. 29.] or was only in love [Murgi Munna, (1938) 18 Pat. 101.] with the accused.
In Jamaluddin, [A.I.R. 1955 Mad. 1227.] it was pointed out that the defense of provocation may be claimed by husband, son or brother when wife, mother or sister was caught in the act of having sexual intercourse with a stranger provided they were living under the protection of the accused, but it should not be extended to first or second cousins and others killing a woman, especially when she was not in the custody or protection of the accused.
In the case of Balku, A.I.R. 1938 All 789. the accused and his wife's sister's husband S, were sleeping on the same cot in the verandah, and the accused's wife 'W’ was sleeping in the adjoining room. Sometime in the night S got up and went into the room and bolted the door behind him. The accused also got up and peeping through a chink in the door saw S and W having sexual intercourse. The accused returned to his cot and lay down on it. After some time S came out of the room and lay down on the cot by the side of the accused. After a short time, when S began dozing the accused stabbed him several times with a knife and killed him. The evidence showed that the accused did not go anywhere to search for the knife, which apparently was with him. The case was covered by Exception 1 to Section 300 notwithstanding the fact of time gap between the seeing of the act of adultery and the killing of S. The accused having acted under grave and sudden provocation was guilty under Section 304. A, a wife, on returning home finds her husband B sleeping on the bed with the maid servant. She brings out a revolver and kills both. She will get benefit of Exception 1 to Section 300.
This exception does not apply where death of adulterer is caused not in a fit of passion but with subsequent deliberation.
Where the accused suspecting infidelity in his wife, followed her with a hatchet on one night when she stealthily left his house, and finding her talking to her paramour, there and then killed her, he was held liable for murder because the accused had followed her on the basis of his suspicion and such provocation was not sudden. [Mohan, (1886) 8 All. 622.]
In another case the accused finding a man intriguing with his wife, beat him and after taking him to the bank of a river cut off his head. He was guilty of murder. [Yasin Sheik. (1869) 12 W.R. (Cr) 68]
In the above two cases the acts were not committed while the accused were deprived of the power of self-control, they were not the off springs of the moment, but were the result of cool and mature consideration after the fresh excitement had passed away.
'X' strikes 'A'. 'A' is by this provocation excited to violent rage. 'Y', a bystander intending to take advantage of A's rage and to cause him kill 'X', gives a revolver into 'A's hand for that purpose. ‘A' kills 'X' with the revolver. A is liable for committing culpable homicide not amounting to murder because he killed X under grave and sudden provocation. Y is also liable for abetting culpable homicide.
EXCEPTION 2-
Culpable homicide is not murder if the offender, in the exercise, in good faith , of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
In order that exception 2 may apply the following conditions must be fulfilled :
1. Act must be done is exercise of right of private defense of person or properly.
2. Act must have been done in good faith.
3. The person doing the act must have exceeded his right given to him by law and have thereby caused death.
4. Act must have been done without premeditation and without any intention of causing more harm than was necessary in self-defense.
The law contained in this exception is based on the rule that in a case in which the law itself empowers an individual to inflict any harm short of death, it ought hardly to visit him with the highest punishment if he inflicts death. [Durawn Geer. (1866) W.R. (Cr.) 73.]
In a case A found that B a feeble old woman was stealing his crop, A beat her so violently that she died from the effect of the attack, it was held that A was guilty of murder and this exception would not apply. [Gokul Bowree. (1866) 5 W.R. (Cr.) 33.]
In another case A pursued a thief B and killed him after the house trespass had ceased, A was held guilty of murder. [Balakee Jalahed, (1868) 10 W.R. (Cr.) 9.]
'A' thief enters 'B's house and opens his safe, B' raises an alarm and the thief bears a retreat. While the thief is still in the house. 'B' fires at him and kills him. B would have been justified in causing any harm other than death in the exercise of his right of private defense. He has exceeded his right of private defense and will, therefore, be liable for culpable homicide not amounting to murder.
In a case a thief was seen with half of his body and head through the wall of a house occupied by women except the accused and his young idiot son and the accused suddenly caught up a sort of pole-axe. and with it struck the thief five times on his neck and nearly cut off his head. It was held that the accused inflicted more hurt than was necessary for defense and was guilty of culpable homicide. [Fukeera Chamar, (1866) 6 W.R. (Cr.) 50.]
The relations between 'A' and 'B' were strained. 'A' was going to pond to collect his utensils. B gave a lathi blow to A as a result of which he died. B has in his defense taken the plea that he struck the blow taking 'A' to be a thief. In this case even though B thought A to be a thief, he has exceeded his right of private defense of property. In case of theft the right of private defense does not extend to causing of death. Since B has exceeded his right of private defense, he will be liable for culpable homicide not amounting to murder.
In a case A attacks B with a stick. In order to defend himself, B takes out his pistol but before he could fire a shot, A kills B by hitting his head with a heavy stone. In this case if A takes the plea of self-defense, he will not succeed because he was himself an aggressor. A will therefore be liable for committing murder of B. B has only taken out his pistol in self-defense as he was attacked by A with a stick, but B did not aim the pistol to A. A had hit B on his head with a heavy stone on a vital part of his body. His act cannot be said to have been done in self-defense and therefore A will be guilty under Section 300 Indian Penal Code for committing murder of B.
EXCEPTION 3
Culpable homicide is not murder If the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. In order that this exception may apply the following conditions must be fulfilled:
1. Offence committed by a public servant, or by some other person acting in the aid of such public servant, in the advancement of public justice.
2. Public servant or such other person exceeds the powers given to him by law.
3. Death is caused by doing an act which he in good faith believes to be lawful and necessary for the discharge of his duty as such public servant.
4. The act must have been done without any ill-will towards the person whose death is caused.
This exception shall not apply where the act of a public servant is illegal and unauthorised by law or if he glaringly exceeds the powers entrusted to him by law.
Where A a police constable fired at certain reapers under the orders of B, a Superintendent of Police and it was found that neither the constable nor the officer believed it necessary for public security to disperse those reapers by firing upon them, it was held that the constable was guilty of murder. [ Subha Naik, (1898) 21 Mad. 249.]
B, a suspected thief who had been arrested by some police constables escaped from a running train. One of the constables pursued him with a view to rearrest him and when he was not in a position to apprehend him, he fired at him, but in that process, he hit the fireman of the engine and killed him. Constable was entitled for the protection of this exception.
In a case a constable verbally ordered two other police constables to arrest two bad characters on a road and to fire if resisted. The accused challenged both of them and then fired as one of them did not stop and in consequence killed one man. In this case the constable is not liable for murder but for culpable homicide. He has exceeded the powers given to him by law to apprehend offenders. He had power to arrest but only because one of the two suspects did not stop on being asked by him to do so there was no justification to open fire. The constable will get the benefit of exception 3 to section 300 and would be liable for committing culpable homicide not amounting to murder.
EXCEPTION 4. -
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
EXPLANATION
It is immaterial in such cases which party offers the provocation or commits the first assault.
DEATH CAUSED IN SUDDEN FIGHT
For the application of this exception the following conditions must be fulfilled:
1. Death must be caused in a sudden fight.
2. Sudden fight must be without any premeditation
3. It must occur in the heat of passion upon a sadden quarrel.
4. The offender must not have taken undue advantage or must not have acted in a cruel or unusual manner.
5. It is immaterial as to which party offered the provocation or committed the first assault.
6. The fight must have been with the person killed.
By fight here means something more than a verbal quarrel. A fight is a combat between two or more persons whether with or without weapons. Fight per se is not a palliating circumstance, it must be sudden, nor pre-arranged nor premeditated.
Therefore, the time gap between the quarrel and the fight is very important. If there was sufficient intervening time for passion to subside and for reason to interpose this exception shall not apply. [Foster, 296.]
Mere exchange of hot words is not enough, exchange of blows is necessary, but use of weapons is not necessary. The fight must be with the person who is killed and not with another person. [Naravanan. A.I.R. 1956 S.C. 99.]
Undue advantage means unfair advantage. [Sarju Parasad. A.I.R. 1959 Pat. 66.]
It was held in Ghapoo Yadav v. State of M.P., [2003 Cri. L.J. 1536 (S.C).] that a fight is a combat between two or more persons whether with or without weapons. A fight is said to be sudden and in a heat of passion when there is no time for the passion to cool down.
It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case.
CASES
SOMIRUDDIN V. EMPEROR, [24 W.R. (CR.) 48.]
A feast was held at the house of one Fakir Mohammad when a dispute arose in consequence of some of the parties objecting to dine with one Nusuriddee on social grounds.
The deceased was one of the objectors while the accused was one of Nusuruddee's supporters. The two quarreled and from words they came to blows in which both parties used sticks. It was held that the accused was guilty of culpable homicide and his case was covered by the exception.
EXCEPTION 5-
Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
Death caused with the consent of the person--
For the application of this exception the following conditions must be fulfilled :
1. Person whose death is caused must have consented to the causing of his death or the taking of the risk of death.
2. The person consenting must be above the age of 18 years.
The consent contemplated by this exception must be unconditional without any reservation and must be unequivocal that is, there must be no choice of alternatives to which the person taking the life more or less has driven the person.3 [In re, Ambalathil Assaenar. A.I.R. 1956 Mad. 97; (1955) 2 M.L.J. 383.]
DASHRATH PASWAN V. STATE OF BIHAR, [A.I.R. 1958 PAL. 190.]
The appellant was a student of class X. He failed in the annual examination for three successive years. His wife aged 19 years was a literate woman. He was very much upset by his last failure and left his village and came back after a week. On return he told his wife that he has decided to end his life.
His wife told him in reply that he should first kill her and then kill himself. About an hour later, his wife spread a mat on the floor in one of the rooms in the house and lay down quietly. The appellant first struck her with a Bhana causing a minor injury on her chest and then took up a sharp weapon and gave her three violent blows on the neck, killing her on the spot.
Thereafter, he ran out of the house with his blood-stained clothes in order to end his own life. One of the witnesses chased the appellant and brought him under arrest to his house.
On a charge for murder it was held that the deceased was above the age of 18 years and had suffered death with her consent. It could not be reasonably said that she gave her consent under fear of injury or under misconception of fact, therefore, the case was covered by this exception and the accused was liable for culpable homicide not amounting to murder.
A, being repeatedly requested by his wife B who was overwhelmed with grief at the death of her child to kill her, kills her one night while she was asleep. Here A would be liable for culpable homicide not amounting to murder and not for murder because death was caused with the consent of his wife.
In Ambalathil Assaenar In re, [ A.I.R. 1956 Mad. 97.]
X was in desperate poverty and tried to persuade his wife to go to her mother's house. She refused and said that if X insisted it was better that she was killed. After asking her two to three times if she did not want to live X cut her with a pen knife and killed her.
In this case X will be liable for committing murder of his wife and he will not get the benefit of exception 5 to Section 300 Indian Penal Code because the consent given by his wife to kill her was not free consent. Consent of wife to kill her was wrongfully obtained by coercing her.
She has not voluntarily given her consent. She was being repeatedly coerced by her husband to go to her mother's house and therefore she asked her husband to kill her rather insist on her to go. This cannot be said to be her free consent.
Consent under this exception must be free consent and not a consent obtained or given under misconception of facts.
POONAI FATTEMAH V. EMPEROR, [(1869) 12 W.R. (CR.) 7.]
the accused who was a snake charmer professed that he was able to cure from snake-bites and by so professing persuaded one of his audience to consent to be bitten by a snake on the belief that he would be able to cure him.
The deceased was bitten by a snake and died. It was held that the case did not fall under this exception because the consent given by the deceased was founded on misconception of fact based on misrepresentation made by the accused and the accused knew that the consent was given in consequence of such misconception. Therefore, the accused was guilty of murder.
A, a snake charmer repeatedly asserts in his performance that he is immune from all kinds of snake poison. He reveals the fangs of his own snakes to the audience and gets himself bitten by them several times.
One of the spectators produces a snake and challenges the performer to repeat his performance by being bitten by the new snake. The snake charmer repeats the performance by being bitten by the new snake. As a result of the snake bite the snake charmer dies.
The spectator will be liable for culpable homicide not amounting to murder and is entitled to claim the benefit of exception 5 to BNS 101 (Section 300). The snake charmer by his repealed assertions has himself consented to the causing of injury which resulted in his death.
X knows Z to be behind a bush. Y does not know about it. X, intending to cause or knowing it to be likely to cause Z's death, induces Y to fire at the bush. Y fires and Kills Z. What is the guilt of X and Y?
a. Both X and Y are guilty of having committed culpable of homicide
b. Both X and Y are guilty of having committed murder
c. X is guilty of having committed culpable homicide but Y is not guilty of having committed any offence, whatsoever
d. X is guilty of having committed murder, but Y is not guilty of having committed any offence.
Ans.(c)
A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity and thereby accelerates the death of that other, shall be deemed to have caused his death, by virtue of:
a. Explanation I to Section 100
b. Explanation I to Section 101
c. Explanation II to Section 100
d. Explanation III to Section 100
Ans. (a)
‘A' a 75-year-old terminally ill patient, pleads with his wife to give him poison so as to put an end to his painful sufferings. The wife does as she is asked to do by her husband. The wife is liable for:
a. Murder
b. Culpable homicide not amounting to murder
c. Abetment of suicide
d. No offence
Ans.(b)
Principle: Whoever causes death by doing an act with the intention of causing death, commits the offence of culpable homicide. However, a person is guilty of culpable homicide amounting to murder if the act by which the death is caused is done with the intention of causing death.
Factual Situation: Saurab, had a serious argument with his wife. The woman uttered some filthy words at Saurab, which further irritated him. He moved towards the woman with a wooden piece to beat her. Suddenly, their daughter who was sleeping in the room woke up and ran towards her mother. Saurab's blow fell on the child's head and she fell down unconscious. The couple believed that their daughter died due to the blow. Saurab immediately took out a rope and hung her by the neck on to the ceiling fan to give the impression that the girl committed suicide as she failed in the Class X examination. When the rope got tightened the child cried, but died immediately due to asphyxiation.
a. Saurab is guilty of murder of his daughter as he hung her by the neck which resulted in her death.
b. Saurab and his wife are both guilty of the murder of their daughter.
c. Saurab is guilty of culpable homicide as he thought that his daughter had already died and he believed that he was only hanging a dead body.
d. Saurab is guilty of grievous hurt as the lathi blow was the basic reason of the child's death.
Ans.(c)
The accused, a shopkeeper, in sudden quarrel hit his wife on head with an iron weight of 200 gm which resulted in her death. The accused is liable for which one of the following?
a. Grievous hurt
b. Attempt to murder
c. Simple hurt
d. Culpable homicide
Ans.(d)
The mens rea required under Section 100 of Bhartiya Nyaya Sanhita, 2023 is:
a. Intention or knowledge
b. Intention or negligence
c. Intention or recklessness
d. Negligence or malice
Ans.(a)
The distinction between Section 100 and Section 101 of Bhartiya Nyaya Sanhita, 2023 was first elaborately discussed in the following case:
a. Vasudev v. Uttar Pradesh
b. Dau Dayal v. State
c. Om Prakash v. State of Punjab,
d. R. v. Govinda
Ans.(d)
'A' with intention to facilitate robbery put a residential house to fire- in the night & causes death of a person due to this fire. 'A' has committed the offence of:
a. Only for putting fire in a house
b. Culpable homicide
c. Intentionally causing death
d. Causing death by accident
Ans.(b)
The distinction between culpable homicide and murder as defined in BNS was pointed out in the decision of
a. R v. Beard
b. R v. Tolson
c. R v. Govinda
d. R v. Prince
Ans.(c)
Acts which come in the category of 'culpable homicide not amounting to murder' are mentioned in which section of BNS?
a. Section 101
b. Section 100
c. Section 100 and 101
d. Section 103
Ans.(b)
W, who had her small baby tied on her back, was proceeding towards her parental place who lived nearby. Since, her husband H, did not like her visits to her parental place prevented her from proceeding further and directed her to return her home and threatened her with dire consequences if she ventured to do so again. She felt very depressed and decided to jump into a well nearby. Unmindful of the presence of her child on her back, she jumped into the well. She survived but the child died. W is guilty of:
a. Murder
b. Culpable homicide not amounting to murder as she cannot be attributed with intention to cause death or intention to cause bodily injury
c. Causing death by rash or negligent act
d. No offence as it is a case of accident or misfortune
Ans. (b)
X inflicted as many as 19 injuries on the arms and legs of Y with a gandasa, resulting in multiple fractures on arms and legs and also profuse bleedings. The injuries cumulatively caused the death of Y. X is tried for the offence of murder under section 103 of the BNS. Determine the criminal liability of X from the alternatives given below:
a. Since X inflicted injuries only on non-vital parts of the body, hence he could not be attributed with intention to kill and therefore, cannot be held guilty of the offence of murder but only of culpable homicide not amounting to murder
b. Even though the accused did not have the intention to cause death but, nonetheless, he had intention to cause the injuries on the body of Y and the injuries so caused were thereby cumulatively sufficient to cause death in the ordinary course of nature and so his case falls under Section 101
c. Since injuries were only on non-vital parts of the body, and there was no intention to cause death, the accused is liable only to be punished for the offence of voluntarily causing grievous hurt by dangerous weapon
d. The liability of X can at best be causing death by rash act not amounting to culpable homicide.
Ans. (a)