Grave and Sudden Provocation should not be sought or voluntarily provoked by offender
The State of Uttar Pradesh Vs Faquirey
Criminal Appeal No. 1842 of 2012
About/from the judgment:
The Supreme Court today reiterated that in order to get the benefit of sudden and grave provocation under the Exception to Section 300 of Indian Penal Code (IPC), the provocation should be one which is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
The judgment was delivered by a Bench of Justices L Nageswara Rao and Sanjay Kishan Kaul in an appeal filed against a judgment of Allahabad High court which had modified the decision of the trial court and held the respondent guilty of culpable homicide not amounting to murder.
The Respondent was convicted under Section 302 of the IPC and sentenced to undergo life imprisonment by the Trial Court. The High Court converted the conviction to an offence under Section 304 Part I, IPC and sentenced the Respondent to 10 years rigorous imprisonment.
The incident which led to the case and conviction is as follows.
A Panchayat was being held at the residence of one Kanhai for settling a dispute, when Rakesh, son of the complainant arrived from his agricultural field. The Respondent saw Rakesh and stated that he will kill him as Rakesh had an evil eye on his wife and was visiting his house. Santosh, the younger brother of the Respondent also arrived at the spot and exhorted the Respondent to kill Rakesh. When Rakesh tried to run to save himself, the Respondent took out a pistol and fired at Rakesh. Rakesh succumbed to the firearm injury.
The Trial Court held that the Respondent had fired at the deceased from his pistol as he had a doubt that the deceased was visiting his house with an evil eye on his wife. While the Trial Court acquitted Santosh, the Respondent was convicted under Section 302 IPC and sentenced to undergo life imprisonment and pay a fine of Rs. 5,000.
In the appeal filed by the Respondent, against the conviction and sentence, there was no contest on merits. The only submission made on behalf of the Respondent was that he could not have been convicted under Section 302 IPC.
According to the Appellant, his conviction should have been under Section 304 IPC as the case is covered under Exception I to Section 300 IPC. The High Court observed that the intervention of the deceased in the quarrel between the two factions led to the Respondent losing his self-control. The High Court was of the opinion that this resulted in grave and sudden provocation.
The High Court, therefore, converted the conviction of the respondent from Section 302 IPC to Section 304 Part I IPC. The Respondent was sentenced to suffer rigorous imprisonment for 10 years.
The Supreme Court, however, held that the judgment of the High Court could not be sustained. It noted the facts of the case which were not disputed by the respondent.
There was no dispute that the shot fired from the pistol by the respondent was due to the grudge that he had against the deceased. Immediately after the deceased arrived at the place of incident, the respondent’s attention was diverted from the dispute that was being settled in the Panchayat. He turned to the deceased and shot him in view of his past conduct relating to the visit of the deceased to his house to become close with his wife, the Supreme court noted.
The Court then proceeded to state the law regarding grave and sudden provocation.
According to Exception I to Section 300 IPC, culpable homicide is not murder if the offender causes the death of the person who gave the provocation, whilst deprived of the power of self-control by grave and sudden provocation. However, the First Proviso to Exception I provides that the provocation should be one which is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
In the instant case, the Court noted that no overt act is alleged against the deceased by which it can be stated that the respondent was provoked. From the proved facts of this case, it appeared that the provocation was voluntary on the part of the offender. Thus, the Court made it clear that such provocation cannot come to the rescue of the respondent to claim that he is not liable to be convicted under Section 302 IPC.
The Supreme Court, therefore, set aside the judgment of the High Court and ordered the respondent to surrender within a period of four weeks to serve the remaining sentence.
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