Holding

The conviction under Section 302 IPC is converted to culpable homicide not amounting to murder under Part I of Section 304 IPC on the ground of grave and sudden provocation under Exception 1 to Section 300 IPC.

Summary

The appellant, Dauvaram Nirmalkar, was convicted of murder under Section 302 IPC for killing his brother Dashrath Nirmalkar. The trial court and High Court found him the sole perpetrator based on eyewitness testimony, forensic evidence, and his own confession, which was held inadmissible under Section 25 of the Evidence Act but led to the discovery of the victim's body. The appellant argued that he acted under grave and sudden provocation, as his brother was an alcoholic who habitually abused and threatened him, culminating in a final threat on the night of the killing. The Supreme Court examined the test for Exception 1 to Section 300 IPC, emphasizing the need for a reasonable‑person standard, the absence of a cooling period, and the proportionality of the response. Finding that the provocation was both grave and sudden and that the appellant lost self‑control, the Court applied the exception, converting the conviction to culpable homicide not amounting to murder under Part I of Section 304 IPC and modifying the sentence accordingly.

Issues considered

The applicability of Exception 1 to Section 300 IPC to the facts of the case
Whether the appellant's confession is admissible as evidence under the Evidence Act
Whether the prosecution proved all elements of murder beyond reasonable doubt
Whether the appellant's loss of self‑control was temporary and reasonable

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 106, s. 25, s. 26, s. 27, s. 8
Indian Penal Code, 1860s. 300, s. 302, s. 304(Part I), s. 309

Subjects

murderprovocationException 1 to Section 300 IPCculpable homicide not amounting to murderevidence admissibilityconfessionIndian Evidence ActIndian Penal Code

Judgment

[2022] 7 S.C.R. 5 5

DAUVARAM NIRMALKAR A
v.
STATE OF CHHATTISGARH
(Criminal Appeal No. 1124 of 2022)
AUGUST 02, 2022 B
[SANJIV KHANNA AND BELA M. TRIVEDI, JJ.]
Penal Code, 1860 – ss.304 Part I and 302 and Exception 1
to s.300 – Murder – Conviction of appellant by Courts below
u/s.302 IPC for murder of his brother – Challenge to – Held: The
C
fact that the appellant and the deceased were together the night
when the deceased suffered the fatal injuries is established and
proven – Therefore, s.106 of the Evidence Act gets attracted and in
the absence of any breakin or third-party involvement, the chain of
facts and circumstances established beyond doubt, bares that the
appellant and no other person was the perpetrator who had inflicted D
the injuries on his brother – However, the acts of provocation on
the basis of which the appellant caused the death of his brother
were both sudden and grave and there was loss of self-control –
The case therefore fell under Exception 1 to s.300 IPC – Deceased
was addicted to alcohol and used to constantly torment, abuse and
E
threaten the appellant – On the night of the occurrence, the deceased
had consumed alcohol and had told the appellant to leave the house
and if not, he would kill the appellant – There was sudden loss of
self-control on account of a ‘slow burn’ reaction followed by the
final and immediate provocation – Exception 1 to s.300 IPC applies
when due to grave and sudden provocation, the offender, deprived F
of the power of self-control, causes the death of the person who
gave the provocation – Applying the provocation exception,
conviction of appellant converted from s.302 to Part I of s.304 IPC
– Evidence Act, 1872 – s.106.
Penal Code, 1860 – Exception 1 to s.300 – Defence of G
provocation under Exception 1 to s.300 IPC – Test for application
of Exception 1 to s.300 IPC – Held: The law attaches great
importance to two things when defence of provocation is taken
under Exception 1 to s.300 IPC – First, whether there was an
intervening period for the passion to cool and for the accused to
H
5
6 SUPREME COURT REPORTS [2022] 7 S.C.R.

A regain dominance and control over his mind – Secondly, the mode
of resentment should bear some relationship to the sort of provocation
that has been given – Exception 1 to s.300 recognises that when a
reasonable person is tormented continuously, he may, at one point
of time, erupt and reach a break point whereby losing self-control,
going astray and committing the offence – However, sustained
B
provocation principle does not do away with the requirement of
immediate or the final provocative act, words or gesture, which
should be verifiable – Further, this defence would not be available
if there is evidence of reflection or planning as they mirror exercise
of calculation and premeditation – The primary obligation of the
C court is to examine the circumstances from the point of view of a
person of reasonable prudence, if there was such grave and sudden
provocation, as to reasonably conclude that a person placed in
such circumstances can temporarily lose self-control and commit
the offence in the proximity to the time of provocation.
D Evidence Act, 1872 – ss. 25, 26, 27 – Confession – Admissibility
of – Held: No part of a First Information Report lodged by an accused
with the police as an implicatory statement can be admitted into
evidence – However, the statement can be admitted to identify the
accused as the maker of the report – Further, that part of the
information in the statement, which is distinctly related to the ‘fact’
E discovered in consequence of such information, can also be admitted
into evidence u/s.27 of the Evidence Act, provided that the discovery
of the fact must be in relation to a material object.
Partly allowing the appeal, the Court

F HELD:1.1. The conditions which have to be satisfied for
invoking Exception 1 to the Section 300 were laid down by
Supreme Court in K.M. Nanavati case as (a) the deceased must
have given provocation to the accused; (b) the provocation must
be grave; (c) the provocation must be sudden; (d) the offender,
by the reason of the said provocation, should have been deprived
G of his power of self-control; (e) the offender should have killed
the deceased during the continuance of the deprivation of power
of self-control; and (f) the offender must have caused the death
of the person who gave the provocation or the death of any other
person by mistake or accident. For determining whether or not
H the provocation had temporarily deprived the offender from the
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 7

power of self-control, the test to be applied is that of a reasonable A
man and not that of an unusually excitable and pugnacious
individual. Further, it must be considered whether there was
sufficient interval and time to allow the passion to cool. [Para
10][14-C-F]
1.2. It was further held in K.M. Nanavati case that the mental B
background created by the previous act(s) of the deceased may
be taken into consideration in ascertaining whether the
subsequent act caused sudden and grave provocation for
committing the offence. There can be sustained and continuous
provocations over a period of time, albeit in such cases Exception
1 to Section 300 of the IPC applies when preceding the offence, C
there was a last act, word or gesture in the series of incidents
comprising of that conduct, amounting to sudden provocation
sufficient for reactive loss of self-control.[Para 11][15-F-H]
1.3. The question of loss of self-control by grave and sudden
provocation is a question of fact. Act of provocation and loss of D
self-control, must be actual and reasonable. The law attaches great
importance to two things when defence of provocation is taken
under Exception 1 to Section 300 of the IPC. First, whether there
was an intervening period for the passion to cool and for the
accused to regain dominance and control over his mind. Secondly, E
the mode of resentment should bear some relationship to the
sort of provocation that has been given. The retaliation should
be proportionate to the provocation. The first part lays emphasis
on whether the accused acting as a reasonable man had time to
reflect and cool down. The offender is presumed to possess the
general power of self-control of an ordinary or reasonable man, F
belonging to the same class of society as the accused, placed in
the same situation in which the accused is placed, to temporarily
lose the power of self-control. The second part emphasises that
the offender’s reaction to the provocation is to be judged on the
basis of whether the provocation was sufficient to bring about a G
loss of self-control in the fact situation. Here again, the court
would have to apply the test of a reasonable person in the
circumstances. [Para 12][16-C-F]

H
8 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 1.4. The gravity of the provocation can be assessed by
taking into account the history of the abuse and need not be
confined to the gravity of the final provocative act in the form of
acts, words or gestures. The final wrongdoing, triggering off the
accused’s reaction, should be identified to show that there was
temporary loss of self-control and the accused had acted without
B
planning and premeditation. Exception 1 to Section 300
recognises that when a reasonable person is tormented
continuously, he may, at one point of time, erupt and reach a break
point whereby losing self-control, going astray and committing
the offence. However, sustained provocation principle does not
C do away with the requirement of immediate or the final
provocative act, words or gesture, which should be verifiable.
Further, this defence would not be available if there is evidence
of reflection or planning as they mirror exercise of calculation
and premeditation. [Para 13][17-B-C, F]
D 2.1. Following the view expressed in K.M. Nanavati case,
this Court in Budhi Singh case observed that in the test for
application of Exception 1 to Section 300 of the IPC, the primary
obligation of the court is to examine the circumstances from the
point of view of a person of reasonable prudence, if there was
such grave and sudden provocation, as to reasonably conclude
E that a person placed in such circumstances can temporarily lose
self-control and commit the offence in the proximity to the time
of provocation. A significant observation in Budhi Singh case is
that the provocation may be an act or series of acts done by the
deceased to the accused resulting in inflicting of the injury. The
F idea behind this exception is to exclude the acts of violence which
are premeditated, and not to deny consideration of circumstances
such as prior animosity between the deceased and the accused,
arising as a result of incidents in the past and subsequently
resulting in sudden and grave provocation. [Para 14][17-G-H;
18-A-C]
G
2.2. The prosecution must prove the guilt of the accused,
that is, it must establish all ingredients of the offence with which
the accused is charged, but this burden should not be mixed with
the burden on the accused of proving that the case falls within an
exception. However, to discharge this burden the accused may
H
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 9

rely upon the case of the prosecution and the evidence adduced A
by the prosecution in the court. It is in this context the case of
the prosecution in the instant case may be referred to, which is
that the deceased was addicted to alcohol and used to constantly
torment, abuse and threaten the appellant. On the night of the
occurrence, the deceased had consumed alcohol and had told
B
the appellant to leave the house and if not, he would kill the
appellant. There was sudden loss of self-control on account of a
‘slow burn’ reaction followed by the final and immediate
provocation. There was temporary loss of self-control as the
appellant had tried to kill himself by holding live electrical wires.
Therefore, the acts of provocation on the basis of which the C
appellant caused the death of his brother were both sudden and
grave and that there was loss of self-control. [Para 15][18-D-F]
3. Applying the provocation exception, the conviction of
the appellant is converted from Section 302 to Part I of Section
304 of the IPC. [Para 16][18-G] D
Aghnoo Nagesia v. State of Bihar [1966] 1 SCR 134;
K. M. Nanavati v. State of Maharashtra [1962] 1 Suppl.
SCR 567 and Budhi Singh v. State of Himachal Pradesh
(2012) 13 SCC 663 : [2012] 11 SCR 848 – relied on.
Rampal Singh v. State of Uttar Pradesh (2012) 8 SCC E
289 : [2012] 7 SCR 160 – referred to.
R. v. Duffy (1949) 1 All.E.R. 932 Ashworth,
1975 Criminal LR 558-559 – referred to.
Paper on ‘Cumulative Provocation and Partial Defences F
in English Criminal Law’ by George Mousourakis –
referred to.
Case Law Reference
[1966] 1 SCR 134 relied on Para 5
[1962] 1 Suppl. SCR 567 relied on Para 10 G

[2012] 11 SCR 848 relied on Para 14
[2012] 7 SCR 160 referred to Para 14

H
10 SUPREME COURT REPORTS [2022] 7 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1124 of 2022.
From the Judgment and Order dated 25.02.2019 of the High Court
of Chhattisgarh in Criminal Appeal No. 400 of 2013.
Harinder Mohan Singh, Adv. for the Appellant.
B
Sumeer Sodhi, Dhruv Wadhwa, Advs. for the Respondent.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
1. Leave granted.
C
2. The appellant, Dauvaram Nirmalkar, has been convicted under
Section 302 of the Indian Penal Code, 1860,1 for the murder of his brother,
Dashrath Nirmalkar, and sentenced to undergo imprisonment for life,
pay fine of Rs.1,000/-, and in default, to undergo simple imprisonment
for a period of six months.
D
3. Dr. Nohar Prasad Jangde (PW-12), the senior medical officer
at the Government District Hospital, Durg District – Durg, Chhattisgarh,
has proved the post mortem report - Ex. P-18, and has testified that
Dashrath Nirmalkar had died due to coma as a result of shock, in view
of the injuries given on the scalp of his head, causing multiple fractures
E on the skull bone. Dashrath Nirmalkar suffered fractures in the left
temporal, frontal, parietal, and left occipital lateral side with a deep lesion.
A lacerated wound was also present on the chin. Homicidal death of
Dashrath Nirmalkar is not disputed and challenged before us.
4. On the question of the involvement of the appellant as the
F perpetrator, we are in agreement with the High Court and the trial court.
No doubt the public witnesses, Manoj Vishwakarma (PW-1) – a local
teacher; Brijesh Sharma (PW-2) – a vegetable seller; Bhagwati Prasad
Nirmalkar (PW-3) – younger brother of the appellant; Nakul Ram Sahu
(PW-4) – neighbour of the appellant; Treveni Bai (PW-7) – sister of the
G appellant; Geeta Bai (PW-8) – sister-in-law of the appellant; Kumari
Shanti Nirmalkar (PW-9) – niece of the appellant; Kumari Madhu
Nirmalkar (PW-10) – niece of the appellant; and Kejauram Nirmalkar
(PW-11) – half brother-in-law of the appellant had turned hostile, there

1
H For short, “IPC”.
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 11
[SANJIV KHANNA, J.]

is ample evidence and material implicating and establishing the appellant’s A
involvement beyond doubt.
5. On 26th September, 2011, the appellant himself went to the
police station and confessed the crime, albeit, the confession is
inadmissible as proof of confession is prohibited under Section 25 of the
Indian Evidence Act, 18722. This Court in Aghnoo Nagesia v. State of B
Bihar3 has held that the confessional statement not only includes the
admission of the offence, but all the other admissions of incriminating
facts relating to the offence. The severability test which was applied by
some of the High Courts to admit evidence, wherein each sentence is
treated separately to admit the non-confessional part, was held to be
misleading and consequently rejected. Thus, no part of a First Information C
Report lodged by an accused with the police as an implicatory statement
can be admitted into evidence. However, the statement can be admitted
to identify the accused as the maker of the report. Further, that part of
the information in the statement, which is distinctly related to the ‘fact’
discovered in consequence of such information, can also be admitted D
into evidence under Section 27 of the Evidence Act, provided that the
discovery of the fact must be in relation to a material object.4 We add
that the conduct of the appellant is relevant and admissible under Section
8 of the Evidence Act.
6. In the present matter, on the disclosure made by the appellant, E
a pick-axe was seized from a wooden box kept in the house where the
appellant used to reside vide Ex. P-1. The seized pick-axe and the shirt
of the appellant, which he wore at the time of the incident, were found to
be stained with blood. The disclosure made by the appellant also led to
the discovery of the body of Dashrath Nirmalkar at the house where the
appellant was residing. F

7. It is an accepted position that the public witnesses, Manoj
Vishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati Prasad
Nirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai (PW-7), Geeta
Bai (PW-8), Kumari Shanti Nirmalkar (PW-9), Kumari Madhu Nirmalkar
(PW-10), and Kejauram Nirmalkar (PW-11), though declared hostile, G
have more or less in unison deposed that the appellant and Dashrath

2
For short, “Evidence Act”.
3
(1966) 1 SCR 134.
4
Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671.
H
12 SUPREME COURT REPORTS [2022] 7 S.C.R.

A Nirmalkar used to stay in separate rooms at the same house. Testimonies
of Kumari Shanti Nirmalkar (PW-9) and Kumari Madhu Nirmalkar
(PW-10) are important as they were present in the house at the time of
the incident. Kumari Shanti Nirmalkar (PW-9) had avowed that her sister
Kumari Madhu Nirmalkar (PW-10) had come and told her that their
uncle Dashrath Nirmalkar had died. Kumari Shanti Nirmalkar (PW-9)
B
had claimed that Kumari Madhu Nirmalkar (PW-10) had told her that
Dashrath Nirmalkar was killed by the appellant. However, Kumari Madhu
Nirmalkar (PW-10) did not profess to having made any such statement,
or that she had seen the appellant committing the offence. At the same-
time, Kumari Shanti Nirmalkar (PW-9) and Kumari Madhu Nirmalkar
C (PW-10) have not deposed about the presence of any intruder or third
person that night. No such suggestion was given to them in the cross-
examination as well. Such suggestions were also not given to Manoj
Vishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati Prasad
Nirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai (PW-7), Geeta
Bai (PW-8), and Kejauram Nirmalkar (PW-11). Therefore, defence of
D
the appellant in his statement under Section 313 of the Code of Criminal
Procedure, 19735 that some third person had killed his brother Dashrath
Nirmalkar, carries no weight and has been rightly rejected. The appellant
had suffered from burn injuries in his hands, which the appellant had
accepted in his statement under Section 313 of the Cr.P.C. The appellant
E had tried to commit suicide by catching live electrical wires, and
consequently he was charged for the offence under Section 309 of the
IPC6. The appellant had admitted his guilt and was consequently
sentenced to undergo simple imprisonment for 10 days vide Ex. P-33.
Thus, the fact that the appellant and the deceased were together the
night when the deceased suffered the fatal injuries is established and
F
proven. Therefore, Section 106 of the Evidence Act7 gets attracted and
in the absence of any break-in or third-party involvement, the chain of
facts and circumstances established beyond doubt, bares that the appellant
and no other person was the perpetrator who had inflicted the injuries on
Dashrath Nirmalkar.
G 5
For short, “Cr.P.C.”
6
309. Attempt to commit suicide. —Whoever attempts to commit suicide and does
any act towards the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year 3 [or with fine, or with both.]
7
106. Burden of proving fact especially within knowledge. –– When any fact is
especially within the knowledge of any person, the burden of proving that fact is upon
H him.
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 13
[SANJIV KHANNA, J.]

8. However, in our opinion, this case will fall under Exception 1 to A
Section 300 of the IPC8 Bhagwati Prasad Nirmalkar (PW-3), the younger
brother of the appellant and the deceased, had deposed that the deceased
used to frequently drink alcohol, barely interacted with the family, and
used to debate and quarrel with the appellant. Nakul Ram Sahu (PW-4),
the neighbour of the appellant, had similarly testified that the deceased
B
was addicted to alcohol and his wife had left him. Dashrath Nirmalkar’s
addiction to alcohol, and that he was extremely abusive and ill-tempered
is the common narration by Geeta Bai (PW-8), wife of Bhagwati Prasad
Nirmalkar (PW-3), and Kumari Shanti Nirmalkar (PW-9), and Kumari
Madhu Nirmalkar (PW-10), nieces of the appellant and Dashrath
Nirmalkar. The prosecution does not dispute this position and in fact, has C
relied upon these facts to show motive.
8
300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder,
if the act by which the death is caused is done with the intention of causing death, or—
Secondly. —If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the harm is D
caused, or—
Thirdly. —If it is done with the intention of causing bodily injury to any person
and the bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death, or—
Fourthly. —If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death, or such bodily injury as is likely E
to cause death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
Exception 1. —When culpable homicide is not murder. —Culpable homicide
is not murder if the offender, whilst deprived of the power of self-control by grave and
sudden provocation, causes the death of the person who gave the provocation or causes
F
the death of any other person by mistake or accident.
The above exception is subject to the following provisos: —
First. —That the provocation is not sought or voluntarily provoked by the
offender as an excuse for killing or doing harm to any person.
Secondly. —That the provocation is not given by anything done in obedience to
the law, or by a public servant in the lawful exercise of the powers of such public G
servant.
Thirdly. —That the provocation is not given by anything done in the lawful
exercise of the right of private defence.
Explanation. —Whether the provocation was grave and sudden enough to prevent
the offence from amounting to murder is a question of fact.
H
14 SUPREME COURT REPORTS [2022] 7 S.C.R.

A 9. Exception 1 differs from Exception 4 of Section 300 of the
IPC9. Exception 1 applies when due to grave and sudden provocation,
the offender, deprived of the power of self-control, causes the death of
the person who gave the provocation. Exception 1 also applies when the
offender, on account of loss of self-control due to grave and sudden
provocation, causes the death of any other person by mistake or accident.
B
Exception 4 applies when an offence is committed without premeditation,
in a sudden fight in the heat of passion upon a sudden quarrel and the
offender commits culpable homicide without having taken undue
advantage of acting in a cruel and unusual manner. The Explanation to
Exception 4 states that in such cases it is immaterial which party gives
C the provocation or commits the first assault.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati
v. State of Maharashtra,10 this Court has held that the conditions which
have to be satisfied for the exception to be invoked are (a) the deceased
must have given provocation to the accused; (b) the provocation must
D be grave; (c) the provocation must be sudden; (d) the offender, by the
reason of the said provocation, should have been deprived of his power
of self-control; (e) the offender should have killed the deceased during
the continuance of the deprivation of power of self-control; and (f) the
offender must have caused the death of the person who gave the
provocation or the death of any other person by mistake or accident. For
E determining whether or not the provocation had temporarily deprived
the offender from the power of self-control, the test to be applied is that
of a reasonable man and not that of an unusually excitable and pugnacious
individual. Further, it must be considered whether there was sufficient
interval and time to allow the passion to cool. K.M. Nanavati (supra)
F succinctly observes:
“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 be laid down. What a reasonable
man will do in certain circumstances depends upon the customs,
G 9
300. 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’s 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.
H 10
1962 Supp (1) SCR 567.
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 15
[SANJIV KHANNA, J.]

manners, way of life, traditional values etc.; in short, the cultural, A
social and emotional background of the society to which an accused
belongs. In our vast country there are social 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
B
circumstances. It is not necessary in this case to ascertain whether
a 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 deliberately. C
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 the accused was placed
would be so provoked as to lose his self-control. (2) In India, D
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 E
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.”
11. K.M. Nanavati (supra), has held that the mental background F
created by the previous act(s) of the deceased may be taken into
consideration in ascertaining whether the subsequent act caused sudden
and grave provocation for committing the offence. There can be sustained
and continuous provocations over a period of time, albeit in such cases
Exception 1 to Section 300 of the IPC applies when preceding the offence, G
there was a last act, word or gesture in the series of incidents comprising
of that conduct, amounting to sudden provocation sufficient for reactive
loss of self-control. K.M. Nanavati (supra) quotes the definition of
‘provocation’ given by Goddard, C.J.; in R. v. Duffy,11 as :
11
(1949) 1 All.E.R. 932. H
16 SUPREME COURT REPORTS [2022] 7 S.C.R.

A “...some act or series of acts, done by the dead man to the accused
which would cause in any reasonable person, and actually causes
in the accused, a sudden and temporary loss of self-control,
rendering the accused so subject to passion as to make him or her
for the moment not master of his own mind...[I]ndeed,
circumstances which induce a desire for revenge are inconsistent
B
with provocation, since the conscious formulation of a desire for
revenge means that the person had the time to think, to reflect,
and that would negative a sudden temporary loss of self-control
which is of the essence of provocation...”.
12. The question of loss of self-control by grave and sudden
C provocation is a question of fact. Act of provocation and loss of self-
control, must be actual and reasonable. The law attaches great importance
to two things when defence of provocation is taken under Exception 1 to
Section 300 of the IPC. First, whether there was an intervening period
for the passion to cool and for the accused to regain dominance and
D control over his mind. Secondly, the mode of resentment should bear
some relationship to the sort of provocation that has been given. The
retaliation should be proportionate to the provocation.12 The first part
lays emphasis on whether the accused acting as a reasonable man had
time to reflect and cool down. The offender is presumed to possess the
general power of self-control of an ordinary or reasonable man, belonging
E to the same class of society as the accused, placed in the same situation
in which the accused is placed, to temporarily lose the power of self-
control. The second part emphasises that the offender’s reaction to the
provocation is to be judged on the basis of whether the provocation was
sufficient to bring about a loss of self-control in the fact situation. Here
F again, the court would have to apply the test of a reasonable person in
the circumstances. While examining these questions, we should not be
short-sighted, and must take into account the whole of the events, including
the events on the day of the fatality, as these are relevant for deciding
whether the accused was acting under the cumulative and continuing
stress of provocation. Gravity of provocation turns upon the whole of
G the victim’s abusive behaviour towards the accused. Gravity does not
hinge upon a single or last act of provocation deemed sufficient by itself
to trigger the punitive action. Last provocation has to be considered in
light of the previous provocative acts or words, serious enough to cause

12
H See the opinion expressed by Goddar, CJ. in R v. Duffy (supra).
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 17
[SANJIV KHANNA, J.]

the accused to lose his self-control. The cumulative or sustained A
provocation test would be satisfied when the accused’s retaliation was
immediately preceded and precipitated by some sort of provocative
conduct, which would satisfy the requirement of sudden or immediate
provocation.
13. Thus, the gravity of the provocation can be assessed by taking B
into account the history of the abuse and need not be confined to the
gravity of the final provocative act in the form of acts, words or gestures.
The final wrongdoing, triggering off the accused’s reaction, should be
identified to show that there was temporary loss of self-control and the
accused had acted without planning and premeditation. This has been
aptly summarised by Ashworth13 in the following words: C

“[T]he significance of the deceased’s final act should be
considered by reference to the previous relations between the
parties, taking into account any previous incidents which add colour
to the final act. This is not to argue that the basic distinction
between sudden provoked killings and revenge killings should be D
blurred, for the lapse of time between the deceased’s final act
and the accused’s retaliation should continue to tell against him.
The point is that the significance of the deceased’s final act and
its effect upon the accused – and indeed the relation of the
retaliation to that act – can be neither understood nor evaluated E
without reference to previous dealings between the parties.”
Exception 1 to Section 300 recognises that when a reasonable
person is tormented continuously, he may, at one point of time, erupt and
reach a break point whereby losing self-control, going astray and
committing the offence. However, sustained provocation principle does F
not do away with the requirement of immediate or the final provocative
act, words or gesture, which should be verifiable. Further, this defence
would not be available if there is evidence of reflection or planning as
they mirror exercise of calculation and premeditation.
14. Following the view expressed in K.M. Nanavati (supra), this G
Court in Budhi Singh v. State of Himachal Pradesh14 observed that in
the test for application of Exception 1 to Section 300 of the IPC, the
primary obligation of the court is to examine the circumstances from the
13
1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper
‘Cumulative Provocation and Partial Defences in English Criminal Law’.
14
(2012) 13 SCC 663. H
18 SUPREME COURT REPORTS [2022] 7 S.C.R.

A point of view of a person of reasonable prudence, if there was such
grave and sudden provocation, as to reasonably conclude that a person
placed in such circumstances can temporarily lose self-control and commit
the offence in the proximity to the time of provocation. A significant
observation in Budhi Singh (supra) is that the provocation may be an
act or series of acts done by the deceased to the accused resulting in
B
inflicting of the injury. The idea behind this exception is to exclude the
acts of violence which are premeditated, and not to deny consideration
of circumstances such as prior animosity between the deceased and the
accused, arising as a result of incidents in the past and subsequently
resulting in sudden and grave provocation. In support of the aforesaid
C proposition and to convert the conviction from Section 302 to Section
304 Part I of the IPC in Budhi Singh (supra), the Court also relied upon
Rampal Singh v. State of Uttar Pradesh15.
15. For clarity, it must be stated that the prosecution must prove
the guilt of the accused, that is, it must establish all ingredients of the
D offence with which the accused is charged, but this burden should not
be mixed with the burden on the accused of proving that the case falls
within an exception. However, to discharge this burden the accused
may rely upon the case of the prosecution and the evidence adduced by
the prosecution in the court. It is in this context we would refer to the
case of the prosecution, which is that the deceased was addicted to
E alcohol and used to constantly torment, abuse and threaten the appellant.
On the night of the occurrence, the deceased had consumed alcohol and
had told the appellant to leave the house and if not, he would kill the
appellant. There was sudden loss of self-control on account of a ‘slow
burn’ reaction followed by the final and immediate provocation. There
F was temporary loss of self-control as the appellant had tried to kill himself
by holding live electrical wires. Therefore, we hold that the acts of
provocation on the basis of which the appellant caused the death of his
brother, Dashrath Nirmalkar, were both sudden and grave and that there
was loss of self-control.
G 16. Applying the provocation exception, we would convert the
conviction of the appellant from Section 302 to Part I of Section 304 of
the IPC.
17. On the question of sentence, we have been informed that the
appellant has already suffered incarceration for over 10 years, as he has
15
H (2012) 8 SCC 289.
DAUVARAM NIRMALKAR v. STATE OF CHHATTISGARH 19
[SANJIV KHANNA, J.]

been in custody since 27 th September, 2011. In the aforesaid A
circumstances, we are inclined to modify the sentence of imprisonment
to the period already undergone. In addition, the appellant would have to
pay a fine of Rs. 1,000/- and in default, will undergo simple imprisonment
for a period of six months. On payment of fine or default imprisonment,
the appellant is directed to be released forthwith, if not required to be
B
detained for any other case.
18. The appeal is partly allowed modifying the conviction and
sentence in the aforesaid terms.

Bibhuti Bhushan Bose Appeal partly allowed. C
(Assisted by : Neha Sharma, LCRA)

D

E

F

G

H