BUDHI SINGHversusSTATE OF H.P.

                       [2012] 11 S.C.R. 848


A                          BUDHI SINGH
                                 v.
                          STATE OF H.P.
                (Criminal Appeal No. 1801 of 2009)
                      DECEMBER 13, 2012
B
     [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

        PENAL CODE, 1860.

C       s.300, Exception 1 and s. 304 (Part-1)-Death caused
  under grave and sudden provocation - Tests to be applied -
  Explained - Held: In the instant case, keeping in view that the
  deceased and the accused were real brothers, and the factum
  of the deceased being in a drunken state abusing and
  assaulting his father, it can be reasonably held that there was
0 sudden and grave provocation to the accused, who gave a
  'tobru' blow on the head of the deceased which proved to be
  fatal -There was no previous animosity between the parties
  - Further, there was neither any premeditation nor an intention
  to kill the deceased - This brings the offence within
E Exception- 1 to s. 300-Accordingly, the accused is convicted
  u./s 304 (Part-I) and sentenced to 10 years RI and to pay a
  fine of Rs.50001-.

        ss. 302 and 304 - Distinction between - Explained.
F
     · The appellant was prosecuted for committing the
  murder of his brother. The prosecution case was that on
  the day of incident, the deceased came to the house after
  getting drunk and started abusing and assaulting his
G father, who called his other son, the appellant, for help.
  On hearing the shouts, the appellant came out of the
  house with a 'tobru' (small axe) in his hands and gave a
  'tobru' blow on the skull of the deceased who
  subsequently succumbed to his injuries. The trial court

H                               848
          BUDHI SINGH v. STATE OF H.P.                  849

convicted the appellant-accused u/s 302 IPC and                A
sentenced him to imprisonment for life. The High Court
affirmed the conviction and the sentence.

    In the instant appeal filed by the accused, the
question for consideration before the Court was: whether       B
the offence fell within the purview of s. 302 or 304 IPC.

    Disposing of the appeal, the Court

     HELD: 1.1. Section 299 IPC covers classes of cases
where an act is done with the intention of causing death C
or with the intention of causing such bodily injury as is
likely to cause death or with the knowledge that the
accused is likely by such act to cause death of the other
person. In all these situations, it will amount to a culpable
homicide. A culpable homicide would be murder, unless D
it falls in any of the general Exceptions 1 to 5 to s. 300
which would bring the offence outside the purview of s.
300 and make it culpable homicide not amounting to
murder. Once it falls in that class of cases, then it is
permissible for the court to impose milder punishment in E
terms of s. 304 or as the case may be. Punishment u/s
302 on the one hand, and s. 304 on the other, is divided
by a fine line of distinction as to when a culpable
homicide would or would not be murder. The provisions
of s.304 itself form a kind of exception to the applicability F
of s. 302, IPC. Thus, provisions of s. 304 apply only if it
is not a murder. [Para 10] [857-F-H; 858-A-B]
    State of Andhra Pradesh v. Rayavarapu Punnayya and
                                =
Another 1977 (1) SCR 601 (1976) 4 sec 382 and
Thangaiya v. State of Tamil Nadu 1962 Suppl. SCR 567      =G
(2005) 9. sec 650 - referred to.
     1.2. The doctrine of sudden and grave provocation
is incapable of rigid construction leading to or stating any
principle of universal application. This will always have      H
   850      SUPREME COURT REPORTS                [2012] 11 S.C.R.

A to depend on the facts of a given case. While applying
  this principle, the primary obligation of the court is to
  examine from the point of view of a person of reasonable
  prudence if there was such grave and sudden
  provocation so as to reasonably conclude that it was
B possible to commit the offence of culpable homicide, and
  as per the facts, was not a culpable homicide amounting
  to murder. An offence resulting from grave and sudden
  provocation would normally mean that a person placed
  in such circumstances could lose self-control but only
c temporarily and that too, in proximity to the time of
  provocation. The provocation could be an act or series
  of acts done by the deceased to the accused resulting
  in inflicting of injury. [Para 13] [862-C-E]

       1.3. Another test that is applied more often than not
D is that the behaviour of the assailant was that of a
  reasonable person. A fine distinction has to be kept in
  mind between sudden and grave provocation resulting
  in sudden and temporary loss of self-control and the one
  which inspires an actual intention to kill. Such act should
E have been done during the continuation of the state of
  mind and the time for such person to kill and reasons to
  regain the dominion over the mind. Once there is pre-
  meditated act with the intention to kill, it will obviously fall
  beyond the scope of culpable homicide not amounting
F to murder. [para 14] [862-F-H]

       1.4. In the instant case, if one examines the
  cumulative effect of the prosecution evidence while
  keeping in view that the deceased and the accused were
G real brothers and the factum of the deceased being in a
  drunken state abusing and assaulting his father, it can
  reasonably be inferred that the provocation was sudden
  and apparently of grave nature. It has been pointed out
  that the deceased used to often come drunk to the house
  and used to quarrel. Even on the date of the fatal incident,
H
          BUDHI SINGH v. STATE OF H.P.                 851

he had come drunk, and abused and even assaulted his A
father. In turn, the father had struck him with a danda and
shouted for help from his other son. Seeing his father
being abused and assaulted and the misbehaviour of the
deceased, that too in a drunken condition, became the
cause for the accused to hit the deceased. In that moment 8
of anger, he came out of the house with a tobru and hit
the deceased on his head. It may merely be a matter·of
chance that he hit the deceased from the sharper side of
tobru rather than blunt side. The injury proved to be fatal.
Of course, the weapon in crime was us.ed with the C
knowledge that it could cause a grievous hurt
endangering the life or even cause death of the deceased
but, such weapon is most easily available in houses in
the hills. Besides, premeditation and intention to kill are
two vital circumstances and amongst others which are
to be considered by the court before holding the accused D
guilty of an offence punishable u/s 302 or 304 IPC. In the
instant case, there is no prosecution evidence to show
that there was animosity between the deceased and the
accused or t!lere was any other motive much less a pre-
med ita tio n to kill the accused. From the entire E
prosecution evidence, it is very difficult to gather that the
accused had the intention to murder his brother and had
gone out with that intention. [Para 12,14 and 19] [861-F-
H; 862-A-B; 863-A-B-D-F; 871-F]
                                                              F
    Bonda Devesu v. State of A.P. (1996) 7 SCC 115; Devku
Bhikha v. State of Gujarat (1996) 11 SCC 641 - relied on.
    KM. Nanavati v. State of Maharashtra AIR 1962 SC 605;
Mangesh v. State of Maharashtra (2011) 2 SCC 123; Rampa/ G
Singh v. State of Uttar Pradesh (2012) 8 SCC 289 - referred
to

    1.5. Thus, in the facts of the case, a sudden and grave
provocation took place which would bring the offence
within the ambit of Exception 1 to s. 300 IPC and,            H
    852      SUPREME COURT REPORTS                 [2012] 11 S.C.R.

A therefore, u/s 304 (Part-1) IPC, as the accused had
  caused such bodily injury to the deceased which, to his
  knowledge, was likely to cause death as he had inflicted
  injuries on the head of the deceased. The accused is held
  guilty of an offence punishable u/s 304 (Part-1) IPC, and
8 sentenced   to 10 years rigorous imprisonment and to a
  fine of Rs.5,000/-. [Para 20] [872-B-D]

                          Case Law Reference:
          1977 (1) SCR 601             referred to       Para 10
c         2004 (6) Suppl. SCR 786 referred to            Para 11
          1962 Suppl. SCR 567          referred to       Para 15
          (1996) 1 sec 115             relied on         Para 16

D         (1996) 11 sec 641            relied on         Para 16
          (2011) 2 sec 123             referred to       Para 17
          (2012) 8 sec 289             referred to       Para 18

        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
E
    No. 1801 of 2009.

        From the Judgment & Order dated 23.8.2004 of the High
    Court of Himachal Pradesh at Shimla in Criminal Appeal No.
    124 of 2002.
F
        Brijender Chahar, K.R. Anand, Rajiv Mehta for the
    Appellant.

          Himinder Lal for the Respondent.

G         The Judgment of-the Court was delivered by

       SWATANTER KUMAR, J. 1. The present appeal is
  directed against the judgment dated 23rd August, 2004 vide
  which the appeal preferred by the accused, against the
H judgment of conviction and order of sentence for life was
            BUDHI SINGH v. STATE OF H.P.                    853
               [SWATANTER KUMAR, J.]

dismissed and the same was affirmed by the High Court of A
Himachal Pradesh at Shimla. The facts giving rise to the
present appeal in brief can be usefully noticed. Ganga Ram and
Budhi Singh were sons of Bala Ram. Ganga Ram along with
two minor sons Ramnath, aged about 11 years and Mohan Lal
was living in a room in a house owned by Bala Ram in Village B
Chowki, District Kullu. Budhi Singh was living with his parents
in a separate room of the same building. Ganga Ram was
married, but his wife Smt. Indra Devi had deserted him - had
settled with one Dolu Ram as his wife.

       2. On 9th November, 2000, Bala Ram, who was examined
                                                                   c
 as DW1 was grazing sheep and goats in the field adjoining his
 house. Ramnath, who was examined as PW9, was washing
 clothes in the courtyard of the house. At about 4 p.m., Ganga
 Ram came to the house under the influence of liquor. As he        D
 entered the house, he started pelting stones on the roof of the
 house and abused his father, DW-1. A quarrel took place
 between Ganga Ram and his father. During the fight between
 the father and the son, DW1 struck a danda blow to Ganga
 Ram, then he shouted for help and called his son Budhi Singh
who was inside the house. On hearing the shouts of his father,     E
 Budhi Singh came to the spot armed with a tobru (small axe)
 in his hands. Budhi Singh inflicted tobru blow on the skull of
 Ganga Ram as a result of which Ganga Ram suffered injuries
on his head and fell down in the field. The wounds of Ganga
 Ram were profusely bleeding. Budhi Singh, accused and his         F
father, DW1 went to their house leaving Ganga Ram in the
injured condition in the field. After some time they came back
to the field and carried Ganga Ram to the verandah of their
house, but by that time, Ganga Ram had died due to injuries
inflicted upon him. This incident occurred at about 4 p.m. After   G
some time, PW9 son of the deceased went to the nearby house
of PW1. Surat Ram and narrated the incident of killing of his
father by his uncle namely Budhi Singh. PW1 and some other
residents of the village gathered in the house of Bala Ram and
found the dead body of the deceased lying there. In the night,     H
    854       SUPREME COURT REPORTS                 [2012] 11 S.C.R.


A sorne of the persons who had come to the house of Bala Ram
  also informed Khimi Ram, Member Zila Parishad, who was
  examined as PW2, of the occurrence. He telephonically passed
  the information of murder of Ganga Ram to the Police Post,
  Shunter. The information was recorded by PW6, Head
B Constable, Ram Swarup in the Roznamcha, Ext. PW6/A at
  Police Chowki, Shunter. PW6 also informed the SHO Roshan
  Lal of Police Station, Kullu in regard to the occurrence. Upon
  receiving directions from PW6 investigation was started and
  police officials were deputed at the place of occurrence. When
C the Investigating Officer, PW10 reached the place of
  occurrence, DW1 disclosed to him that Ganga Ram was
  murdered by him with Danda blow though PW9, the minor son
  of the deceased, informed PW10 that his father, Ganga Ram,
  was murdered by the accused with tobru blows. PW1 O
D recorded the statement, Ext. PW9/A, of PW9 under Section 154
  of the Code of Criminal Procedure, 1973 (for short "the CrPC")
  and sent the same to the police station. On the basis of this,
  the First Information Report (FIR), Ext. PW7/B, was recorded
  at about 2.45 p.m. on 10th November, 2000 by Muharrar Head
E Constable Bhagat Ram, PW7. PW10 inspected the spot, took
  blood stained earth and bunch of hair of the deceased from the
  spot vide Ext. PB prepared in the presence of PW1. PW10
  prepared the inquest report, Ext. PA and took the photographs
  of the dead body of Ganga Ram. Then the body of Ganga Ram
F was sent to District Hospital for post mortem. The post mortem
  of the body was performed by Dr. Bhupender Chauhan, PW5
  and he prepared his report Ext. PW5A. According to the post
  mortem report, injuries found on the body of the deceased and
  the cause of death as declared by the PW5 reads as follows:-
G         "First wound was sharp edged wound extending from
          tragus of right ear to the centre of head to the junction of
          frontal and parietal bone. Underlying bone was also cut.
          The wound was 17 cm long and brain was also visible.

H         The second wound was also sharp edged wound on right
           BUDHI SINGH v. STATE OF H.P.                    855
              [SWATANTER KUMAR, J.]

    side of parietal nature 4 cm long. Underlying bone was also   A
    cut and brain was visible. Rest of the body was normal.

    The probable cause of death was head injury, leading to
    cardio respiratory arrest and death."
                                                                  B
      3. The accused wa~ arrested, put to trial and vide judgment
dated 1st January, 2002, the trial court convicted the accused
Budhi Singh for committing an offence under Section 302 of
the Indian Penal Code, 1860 (IPC) and as a sequel to the
finding recorded on merits, also passed an order of sentence,
awarding life imprisonment and a fine of Rs. 2,000. In default C
of fine, the accused was directed to suffer further imprisonment
for six months. This judgment of the trial court was appealed
by the accused as already noticed. The appeal came to be
dismissed by the judgment of the High Court dated 23rd
August, 2004 affirming the judgment of the Trial Court giving D
rise to the filing of the present appeal by way of special leave.
      4. The counsel appearing for the accused has not
challenged the conviction of the accused on merits, but has
contended that even if it is argued that prosecution has been E
able to establish its case beyond reasonable doubt, then also
on the basis of the prosecution evidence, an offence under
Section 302 IPC is not made out and the accused can, at best,
be punished only for an offence under Section 304 Part II, IPC.
The contention is that the accused had no intention to kill the F
deceased. It was not a case of pre-meditated murder. The
incident took place at the spur of the moment and there was
sudden and grave provocation by the deceased which resulted
in inflictment of the injuries on the body of the deceased.
Therefore, the case would be covered under Exception I to
Section 300 and there being no intention to kill would be a case G
of culpable homicide not amounting to murder falling under Part
II of Section 304 IPC. In support of its contention, he has relied
upon State of Andhra Pradesh v. Rayavarapu Punnayya and
Another [(1976) 4 SCC 382], Mangesh v. State of Gujarat
                                                                   H
    856     SUPREME COURjT REPORTS                (2012] 11 S.C.R.


A ((2011) 2 SCC 123], Devku Bhikha v. State of Maharashtra
  ((1996) 11 SCC 641], Bonda Devesu v. State of A.P. ((1996)
  1 sec 115].

        5. While refuting the contention of the appellant, it is
B contended on behalf of the State that there was a clear
  intention on the part of the accused to kill the deceased. The
  accused inflicted two injuries on the head of the deceased by
  tobru (small axe), thus it is clear from the prosecution evidence
  that the accused had inflicted injurieson a vital part of the body
c and with a sharp edged weapon, which was bound to result in
  his death and, therefore, the accused could not be absolved
  of the liabilities and consequences of committing culpable
  homicide amounting to murder.

        6. In order to examine the merit or otherwise of this sole
D contention, raised before the court, let us examine the evidence
  that has come on record. As already noticed, there is no dispute
  as to the occurrence and the death of the deceased as a result
  of inflictment of injuries by the accused. All that has to be
  examined by this court is whether the offence falls within the
E purview of Section 302 or Section 304 Part II JPC. In light of
  this, we have to refer to the evidence from that limited point of
  view.

        7. Ext. PW7/B is the FIR recorded in relation to the
F occurrence in question. As per the FIR which was recorded on
  the basis of the statement of PW9, the deceased had come
  from outside after getting drunk. He threw stones and started
  abusing Bala Ram who was just a 100 feet away in the field,
  grazing animals. Bala Ram told the deceased that he was a
G thief and used to steal his money. Then they started quarrelling
  with each other. Then the deceased started beating him (Mara
  Peeta Kama Shuru Kar Diya) upon which Bala Ram called out
  to his son Budhi Singh. Upon this, Budhi Singh had come and
  he was carrying tobru in his hands and hit it on the head of the
H deceased which started bleeding. PW9 when examined as a
           BUDHI SINGH v. STATE OF H.P.                    857
              [SWATANTER KUMAR, J.]
witness in the court said the same thing and also that Bala Ram A
had demanded money from the deceased which he had taken
from Bala Ram earlier. In regard to inflicting of the injury, PW9
stated "my uncle brought tobru and inflicted injury on the head
of my father."
                                                                  B
     8. PW5, Dr. Bhupender Choudhary when examined in the
court stated that there were two wounds on the side of the head
of the deceased. First wound was sharp edged wound
extending from tragus of right ear to the centre of head to the
junction of the frontal and parietal bone. Second wound was C
also sharp edged wound on right side of parietal bone, 4 cm
long. Underlying bone was also cut and brain was visible. Rest
of the body was normal.

      9. There is little ambiguity in the FIR Ext.PW7/B. The
contention is that PW9 has improved upon his statement as D
only one injury had been inflicted by the deceased and two
injuries were stated by PW9 in the court. This does not help
the accused much inasmuch as the statement of PW9 in court
is fully supported by the statement of PW5 who has stated that
both injuries were caused by sharp edged weapon and were E
sufficient to cause death in the normal course.

      10. Now, we may discuss the legal aspect of this
submission. Section 299, IPC defines a culpable homicide.
Section 299 covers classes of cases where an act is done with F
the intention of causing death an or with the intention of causing
such bodily injury as is likely to cause death or with the
knowledge that he is likely by such act to cause death of the
other person. In all these situations, it will amount to a culpable
homicide. A culpable homicide would be murder, unless it falls G
in any of the general exceptions (i) to (v) to Section 300 which
would bring the offence outside the purview of Section 300 and
make it culpable homicide not amounting to murder. Once it
falls in that class of cases, then it is permissible for the Court
to impose milder punishment in terms of Section 304 Part I or
                                                                    H
    858        SUPREME COURT REPORTS                     [2012] 11 S.C.R.


A Part II, as the case may be. Punishment under Section 302 on
  the one hand, and Section 304 on the other is divided by a fine
  line of distinction as to when a culpable homicide would or
  would not be murder. The provisions of Section 304 itself form
  a kind of exception to the applicability of Section 302, IPC, in
B other words, provisions of Section 304 Part II only if it is not a
  murder. This scheme and distinction has been most
  appropriately stated by a judgment of this Court in State of
    Andhra Pradesh v. Rayavarapu Punnayya and Another
    [(1976) 4 SCC 382], where the Court upon noticing the
c   distinction between these provisions also stated the factors
    which are to be considered by the court before applying those
    principles.

          "17. For cases to fall within clause (3), it is not necessary
          that the offender intended to cause death, so long as the
D         death ensues from the intentional bodily injury or injuries
          sufficient to cause death in the ordinary course of nature.
          Rajwant v. State of Kera/a is an apt illustration of this point.

          18. In Virsa Singh v. State of Punjab Vivian Bose, J.
E         speaking for this Court, explained the meaning and scope
          of clause (3), thus (at p. 1500):

                 "The prosecution must prove the following facts
          before it can bring a case under Section 300, 'thirdly'. First,
          it must establish quite objectively, that a bodily injury is
F         present; secondly the nature of the injury must be proved.
          These are purely objective investigations. It must be proved
          that there was an intention to inflict that particular injury, that
          is to say, that it was not accidental or unintentional or that
          some other kind of injury was intended. Once these three
G         elements are proved to be present, the enquiry proceeds
          further, and fourthly it must be proved that the injury of the
          type just described made up of the three elements set out
          above was sufficient to cause death in the ordinary course
          of nature. This part of the enquiry is purely objective and
H         inferential and has nothing to do with the intention of the
       BUDHI SINGH v. STATE OF H.P.                      859
          [SWATANTER KUMAR, J.]
offender."                                                       A

19. Thus according to the rule laid down in Virsa Singh
case of even if the intention of accused was limited to the
infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention   B
of causing death, the offence would be "murder". Illustration
(c) appended to Section 300 clearly brings out this point.

20. Clause (c) of Section 299 and clause (4) of Section
300 both require knowledge of the probability of the act
causing death. It is not necessary for the purpose of this C
case to dilate much on the distinction between these
corresponding clauses. It will be sufficient to say that clause
(4) of Section 300 would be applicable where the
knowledge of the offender as to the probability of death of
a person or persons in general - as distinguished from D
a particular person or persons - being caused from his
imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offender must
be of the highest degree of probability, the act having been
committed by the offender without any excuse for incurring E
the risk of causing death or such injury as aforesaid.

21. From the above conspectus, it emerges that whenever
a court is confronted with the question whether the offence
is "murder" or "culpable homicide not amounting to F
murder", on the facts of a case, it will be convenient for it
to approach the problem in three stages. The question to
be considered at the first stage would be, whether the
accused has done an act by doing which he has caused
the death of another. Proof of such causal connection G
between the act of the accused and the death, leads to
the second stage for considering whether that act of the
accused amounts to "culpable homicide" as defined in
Section 299. If the answer to this question is prima facie
found in the affirmative, the stage for considering the
operation of Section 300 of the Penal Code, is reached. H
    860      SUPREME COURT REPORTS                  [2012] 11 S.C.R.

A         This is the stage at which the court should determine
          whether the facts proved by the prosecution bring the case
          within the ambit of any of the four clauses of the definition
          of "murder" contained in Section 300. If the answer to this
          question is in the negative the offence would be "culpable
B         homicide not amounting to murder", punishable under the
          first or the second part of Section 304, depending,
          respectively, on whether the second or the third clause of
          Section 299 is applicable. If this question is found in the
          positive, but the case comes within any of the exceptions
c         enumerated in Section 300, the offence would still be
          "culpable homicide not amounting to murder", punishable
          under the first part of Section 304, of the Penal Code.

          22. The above are only broad guidelines and not cast-iron
          imperatives. In most cases, their observance will facilitate
D
          the task of the court. But sometimes the facts are so
          intertwined and the second and the third stages so
          telescoped into each other, that it may not be convenient
          to give a separate treatment to the matters involved in the
          second and third stages."
E
         11. A Bench of this Court in the case of Thangaiya v. State
    of Tamil Nadu [(2005) 9 SCC 650] pointed out the distinction
    between the two sections and observed as under:-

F         "9. This brings us to the crucial question as to which was
          the appropriate provision to be applied. In the scheme of
          IPC culpable homicide is the genus and "murder" its
          specie. All "murder'' is "culpable homicide" but not vice
          versa. Speaking generally, "culpable homicide" sans
          "special characteristics of murder is culpable homicide not
G
          amounting to murder". For the purpose of fixing
          punishment, proportionate to the gravity of the generic
          offence, IPC practically recognises three degrees of
          culpable homicide. The first is, what may be called,
          "culpable homicide of the first degree". This is the gravest
H
           BUDHI SINGH v. STATE OF H.P.                 861
             [SWATANTER KUMAR, J.]
    form of culpable homicide, which is defined in Section 300 A
    as "murder". The second may be termed as "culpable
    homicide of the second degree". This is punishable under
    the first part of Section 304. Then, there is "culpable
    homicide of the third degree". This is the lowest type of
    culpable homicide and the punishment provided for it is B
    also the lowest among the punishments provided for the
    three grades. Culpable homicide of this degree is
    punishable under the second part of Section 304.

    10. The academic distinction between "murder" and C
    "culpable homicide not amounting to murder" has always
    vexed the courts. The confusion is caused, if courts losing
    sight of the true scope and meaning of the terms used by
    the legislature in these sections, allow themselves to be
    drawn into minute abstractions. The safest way of
    approach to the interpretation and application of these D
    provisions seems to be to keep in focus the keywords
    used in the various clauses of Sections 299 and 300 ..... ."
      12. Having stated the basic distinction between these
offences, now we have to examine whether there was such E
grave and sudden provocation that would bring the case of the
appellant within the ambit of exception I to Section 300. The
deceased and the accused were real brothers. There was no
previous animosity between the parties. It has been pointed out
that the deceased used to often come drunk to the house and F
used to quarrel. Even on the date of the fatal incident, he had
come drunk, and abused and even assaulted his father. In turn,
the father had struck him with a danda and shouted for help
from his other son. Seeing his father bemg abused, assaulted
and the misbehaviour of the deceased, that too in a drunken G
condition, became the cause for the accused to hit the
deceased. In that moment of anger, he came out of the house
with a tobru which is the most commonly available weapon in
houses in the hills and hit the deceased on his head. It may
merely be a matter of chance that he hit the deceased from the H
    862      SUPREME COURT REPORTS                    [2012] 11 S.C.R.


A sharper side of tobru (small axe) rather than blunt side. The
  injury was so severe that it fractured his skull and he fell on th!!
  ground. From the entire prosecution evidence, it is very difficult
  to gather that the accused had the intention to murder his
  brother and had gone out with the intention to kill him. The injury
B inflicted was the result of the impact of the weapon used rather
  than the force applied. Had there been excessive use of force,
  it would have inevitably resulted in breaking of the skull into two
  parts.

        13. The. doctrine of sudden and grave provocation is
C incapable of rigid construction leading to or stating any principle
  of universal application. This will always have to depend on the
  facts of a given case. While applying this principle, the primary
  obligation of the Court is to examine from the point of view of
  a person of reasonable prudence if there was such grave and
D suddep provocation so as to reasonably conclude that it was
  possible to commit the offence of culpable homicide, and as
  per the facts, was not a culpable homicide amounting to
  murder. An offence resulting from grave and sudden provocation
  would normally mean that a person placed in such
E circumstances could lose self-control but only temporarily and
  that too, in proximity to the time of provocation. The provocation
  could be an act or series of acts done by the deceased to the
  accused resulting in inflicting of injury.

F       14. Another test that is applied more often than not is that
  the behaviour of the assailant was that of a reasonable person.
  A fine distinction has to be kept in mind between sudden and
  grave provocation resulting in sudden and temporary loss of
  self-control and the one which inspires an actual intention to kill.
G Such act should have been done during the continuation of the
  state of mind and the time for such person to kill and reasons
  to regain the dominion over the mind. Once there is pre-
  meditated act with the intention to kill, it will obviously fall beyond
  the scope of culpable homicide not amounting to murder. When
  we consider the facts of the case in hand, it is obvious and, as
H
           BUDHI SINGH v. STATE OF H.P.                     863
             [SWATANTER KUMAR, J.]
already noticed, tobru (small axe) is a commonly available          A
weapon in the houses in the hills which is used for cutting and
collecting the firewood. It is also a matter of common
knowledge that the cooking gas was not available in interior
parts of hills 12 years back. The provocation was sudden and
apparently of grave nature. It is the case of prosecution itself    B
that the deceased was abusing and even assaulting his father
and father had shouted for help and called the accused who
was already in the house. The deceased was in a drunken
state. As it appears that tobru was easily available which the
accused picked up and went straight out and assaulted his           c
brother, the deceased. The injuries proved fatal. There is no
prosecution evidence to show that there was animosity between
the deceased and the accused or there was any other motive
much less a pre-meditation to kill the accused. They had been
living in the same house for years. No unpleasant incident or       D
physical fight was stated to have been reported to the.Police
in the past. If one examines the cumulative effect of the
prosecution evidence while keeping the relationship of the
parties in mind and the factum of the deceased being in a
drunken state abusing and assaulting his father, it can
reasonably be inferred that there was sudden and grave              E
provocation to the accused. In our society, a son normally would
not tolerate that his father is insulted, much less assaulted. Of
course, the weapon used in crime was used with the knowledge
that it could cause a grievous hurt endangering the life or even
cause death of the deceased but, as indicated supra, such           F
weapon is most easily available in houses.
     15. KM. Nanavati v. State of Maharashtra [AIR 1962 SC
605] is an illustrious judgment of this Court, which dealt with and
explained the concept and doctrine of grave and sudden G
provocation within its legal dimensions. In that case, the accused
had killed a businessman having come to know from his wife
of the intimacy between them. While denying the plea of
culpable homicide not amounting to murder, the Court
discussed the law as under :                                        H
    864      SUPREME COURT REPORTS                     [2012] 11 S.C.R.

A         "78. The first question raised is whether Ahuja gave
          provocation to Nanavati within the meaning of the
          exception and whether the provocation, if given by him, was
          grave and sudden.

B         xxxxxx                         xxx               xxx
          81. The question that the Court has to consider is whether
          a reasonable person placed in the same position as the
          accused was, would have reacted to the confession of
          adultery by his wife in the manner in which the accused did.
c         In Mancini v. Director of Public Prosecutions Viscount
          Simon, L.C., states the scope of the doctrine of
          provocation thus:

                   "It is not all provocation that will reduce the crime
D                  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
E
                   was laid down by the Court of Criminal Appeal in
                   Rex v. Lesbini 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
F                  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
G                  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
H                  be reduced to manslaughter."
       BUDHI SINGH v. STATE OF H.P.                    865
         [SWATANTER KUMAR, J.]
Viscount Simon again in Holmes v. Director of Public A
Prosecutions elaborates further on this theme. There, the
appellant had entertained some suspicions of his wife's
conduct with regard to other men in the village. On a
Saturday night there was a quarrel between them when
she said, 'Well, if it will ease your mind, I have been untrue B
to you", and she went on, "I know I have done wrong, but I
have no proof that you haven't- at Mrs X's". With this the
appellant lost his temper and picked up the hammerhead
and struck her with the same on the side of the head. As
he did not like to see her lie there and suffer, he just put c
both hands round her neck until she stopped breathing. The
question arose in that case whether there was such
provocation as to reduce the offence of murder to
manslaughter. Viscount Simon, after referring to Mancini
case proceeded to state thus:
                                                               D
        "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. E
        Consequenily, where the provocation inspires an
        actual intention to kill (such as Holmes admitted in
        the present case), or to inflict grievous bodily harm,
        the doctrine that provocation may reduce murder to
        manslaughter seldom applies."                          F

xxx xxx                      xxx
84. 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 G
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 H
    866       SUPREME COURT REPORTS                  [2012] 11 S.C.R.


A         groups ranging from the lowest to the highest state of
          civilization. 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. It
          is not necessary in this case to ascertain whether a
B         reasonable man placed in the position of the accused
          would have lost his self-control momentarily or even
          temporarily when his wife confessed to him of her illicit
          intimacy with another, for we are satisfied on the evidence
          that the accused regained his self-control and killed Ahuja
c         deliberately.

          85. 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
D         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.
E         (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
F         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."
       16. In the case of Bonda Devesu v. State of A.P. [(1996)
G 7 SCC115], the accused belonged to a tribal community and
  the deceased had behaved in an obscene way with wife of the
  accused. Having regard to the socio-economic background of
  the accused, the Court held it to be an offence punishable under
  Section 304 Part I and not Section 302 IPC. Again in the case
H ofDevkuBhikhav. StateofGujarat[1996) 11 SCC641]where
           BUDHI SINGH v. STATE OF H.P.                    867
              [SWATANTER KUMAR, J.]
the deceased, Head Master of a school, had asked the accused      A
to make his wife available for immoral purposes in return to
give job to the accused in the school as well as charged him
of impotency and the accused killed the Head Master with
repeated knife injuries, the Court accepted it as an offence
punishable under Section 304 Part I, holding as under:            B

           "... Thus, from this analysis ii becomes abundantly
    clear that the appellant was driven to the crime which was
    not premeditated and the occasion .had sprung up at the
    moment, gradually leading to the point when the appellant C
    lost his self-control, and due to grave and sudden
    provocation, inflicted the injuries on the deceased,
    successively within seconds. We think, therefore, that the
    offence made out against the appellant is under Section
    304 Part I IPC. Accordingly, the offence is scaled down
    from one punishable under Section 302 IPC to one under D
    Section 304 Part I IPC for which we impose sentence of
    seven years' RI on the appellant."
      17. This Court, in the case of Mangesh v. State of
Maharashtra [(2011) 2 SCC 123], stated the circumstances E
from which it may be gathered as to whether there was intention
to cause death. It included circumstances like; nature of the
weapon: on what part of the body the blow was .:1iven; the
amount of force; was it a result of a sudden fight or quarrel;
whether the incident occurred by chance or was pre-meditated; F
prior animosity; grave and sudden provocation; heat of passion;
did the accused take any undue advantage; did he act cruelly;
number of blows given, etc..
      18. In light of the circumstances which would help the Court
to gather the intention of the accused, the Court also has to take G
into consideration the attendant circumstances. One of the very
vital factors is pre-meditation and intention to kill. These are the
important factors which will weigh in the mind of the Court while
determining such an issue in light of the attendant
circumstances. In the case of Rampa/ Singh v. State of Uttar H
    868       SUPREME COURT REPORTS                 (2012] 11 S.C.R.

A Pradesh [(2012) 8 SCC 289], where the accused being related
  to the deceased, had shot him over a dispute in regard to
  construction of a ladauri this Court held as under :

           "27. We have already noticed that both the accused and
B         the deceased were related to each other. Both were
          serving in the Indian Army. They had come on leave to their
           home and it was when the deceased was about to return
          to the place of his posting that the unfortunate incident
          occurred. The whole dispute was with regard to
          construction of ladauri by the deceased to prevent
c
          garbage from being thrown on his open land. However, the
          appellant had broken the ladauri and thrown garbage on
          the vacant land of the deceased. Rather than having a
          pleasant parting from their respective families and
          between themselves, they raiseaa dispute which led to
D         death of one of them. When asked by the deceased as to
          why he had done so, the appellant entered into a heated
          exchange of words. They, in fact, grappled with each other
          and the deceased had thrown the appellant on the ground.
          It was with the intervention of DW 1, Ram Saran and Amar
E         Singh that they were separated and were required to
          maintain their cool. However, the appellant went to his
          house and climbed to the roof of Muneshwar with a rifle in
          his hands when others, including the deceased, were
          talking to each other. Before shooting at the deceased, the
F         appellant had asked his brother to keep, away from him.
          On this, the deceased provoked the appellant by asking
          him to shoot if he had the courage. Upon this, the appellant
          fired one shot which hit the deceased in his stomach. This
          version of the prosecution case is completely established
G         by the eyewitnesses, medical evidence and the recovery
          of the weapon of crime. The learned counsel appearing
          for the appellant has, thus, rightly confined his submissions
          with regard to alteration of the offence from that under
          Section 302 to the one under Section 304 Part II of the
H         Code.
       BUDHI SINGH v. STATE OF H.P.                    869
          [SWATANTER KUMAR, J.]

28. At this stage, it would be relevant to refer to the        A
statement of one of the most material witnesses which will
aid the Court in arriving at a definite conclusion. Smt Sneh
Lala, who was examined as PW 1, is the wife of the
deceased. After giving the introductory facts leading to the
incident, she stated as under:                                 B

       "In the meantime, Amar Singh, my uncle-in-law
       (Chachiya Sasur) came there and one man from
       Dhaniapur also came there. My husband started
       talking with them and by that time the accused who
       is present in the Court, came there. My husband         c
       told him that why's you have started using as your
        Goora in our land why you have demolished our
        ladauri which was constructed by us. On this issue,
        there was heated discussion in between my
        husband and Rampal Singh and my husband had D
        thrown the accused on the ground. By that time, his
        son Ram Saran came there and thereafter he and
        Amar Singh separated both of them. Ram Saran
         made the accused understand and he started
         talking with him. My husband got down from the E
         thatch and stood up by the help of pillar and he
         started talking with these people and in t~e
         meantime, Rampal had left for his house. Then one
         of the people saw that the accused present in the·
         Court, had climbed on the roof of Muneshwar and F
          stood towards wall which is situated towards the
          southern side of my house and he further told that
          our land which is vacant land, in the munder of the
          wall situated east side of the same, where he was
          standing, he told his brother to go aside, I will fire G
          bullet. On this, his brother said that are you going
          mad. On this, my husband said that have you
          courage to shoot at me. On this the accused said
          that see his courage and saying this, the accused
          fired bullet which hit my husband. On the said bullet H
    870    SUPREME COURT REPORTS                    [2012] 11 S.C.R.


A              hit, my husband fell down and then the accused
               climbed down from the stairs and fled away.
              Thereafter, Ram Saran, etc. helped my husband
              and they called the compounder from village. The
              compounder had made wet Aata and sealed/filled
B             the wound of my husband and he advised to
              immediately take him to some big hospital and
             thereafter, we took my husband to Bewar. My
             husband said the report will be lodged on some
             other day, first you take me to Army Hospital,
c            Falehgarh. On the very same day at about quarter
             to nine, we had taken him to Fatehgarh Hospital
             where after four-five days, he died."

       29. From the above statement of this witness, ii is clear
      that there was heated exchange of words between the
D     deceased and the appellant. The deceased had thrown the
      appellant on the ground. They were separated by Amar
      Singh and Ram Saran. She also admits that her husband
      had told the appellant that he could shoot al him if he had
      the courage. It was upon this provocation that the appellant
E     fired the shot which hit the deceased in his stomach and
      ultimately resulted in his death.

      30. Another very important aspect is that ii is not a case
      of previous animosity. There is nothing on record to show
      that the relation between the families of the deceased and
F
      the appellant was not cordial. On the contrary, there is
      evidence that the relations between them were cordial, as
      deposed by PW 1. The dispute between the parties arose
      with. a specific reference to the ladauri. It is clear that the
     appellant had not committed the crime with any
G
     premeditation. There was no intention on his part to kill.
     The entire incident happened within a very short span of
     time. The deceased and the appellant had had an
     altercation and the appellant was thrown on the ground by
     the deceased, his own relation. It was in that state of anger
H
          BUDHI SINGH v. STATE OF H.P.                    871
             [SWATANTER KUMAR, J.]
   that the appellant went to his house, took out the rifle and A
   from a distance i.e. from the roof of Muneshwar, he shot
   at the deceased. But before shooting, he expressed his
    intention to shoot by warning his brother to keep away. He
    actually fired in response to the challenge that was thrown
    at him by the deceased. It is true that there was knowledge B
    on the part of the appellant that if he used the rifle and shot
     at the deceased, the possibility of the deceased being
     killed could not be ruled out. He was a person from the
     anned forces and was fully aware of the consequences of
     use of fireanns. But this is not necessarily conclusive of C
     the fact that there was intention on the part of the appellant
     to kill his brother, the deceased. The intention probably
     was to merely cause bodily injury. However, the Court
     cannot overlook the fact that the appellant had the
      knowledge that such injury could result in the death of the
      deceased. He only fired one shot at the deceased and ran D
      away. That shot was aimed at the lower part of the body
      i.e. the stomach of the deceased. As per the statement of
      PW 2, Dr A.K. Rastogi, there was a stitched wound
      obliquely placed on the right iliac tossa which shows the
      part of the body the appellant aimed at."                     E

      19. As we have discussed above, premeditation and
intention to kill are two vital circumstances amongst others
which are to be considered by the Court before holding the
accused guilty of an offence under Section 302 or 304 IPC. At F
the cost of repetition, we may notice that from the prosecution
evidence, it is not established that the accused had the intention
to kill the deceased or it was a premeditated crime. The
 learned counsel appearing for the State has contended that the
 very fact that the accused had come out with a tobro completely G
 establishes the intention to kill and, thus, the offence would fall
 under Section 302 IPC. It cannot be disputed that the accused
 came out with a tobro but, at the same time, it is also clear that
 this is the most easily available weapon in that part of the hills
 and is used regularly by the communities. Beyond this factor, H
    872       SUPREME COURT REPORTS               [2012] 11 S.C.R.

A there is no evidence of animosity, premeditation or intention to
  kill. The accused did give a blow by tobru on the head of the
  deceased which proved fatal. This was result of the grave and
  sudden provocation where father of both the deceased and the
  accused was being abused, assaulted and ill-treated by the
B deceased, who was in a drunken state.

        20. Thus, in the facts of the present case, a sudden and
   grave provocation took place which would bring the offence
   within the ambit of exception 1 of Section 300 IPC and hence
   under Section 304 Part I IPC as the accused had caused such
C bodily injury to the deceased which, to his knowledge, was likely
  to cause death as he had inflicted injuries on the head of the
  deceased. Having held the accused guilty of an offence under
  Section 304 Part I IPC, we award the sentence of 10 years
  rigorous imprisonment and to a fine of Rs.5,000/- in default
D thereto to undergo further imprisonment of six months.
          21. The appeal is disposed of accordingly.

   R.P.                                      Appeal disposed of.