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Homicide which would otherwise be Murder is not Murder but Manslaughter (Indian Penal Code, 1860)

January 7, 2019 0 Comment

The exception is further governed by the following provisions 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 servant; Thirdly, that the provocation is not given by anything done in the lawful exercise of the right of private defence.

Thus, it is provided that culpable homicide is not murder (but only manslaughter) if the homicide be done whilst the person doing it is deprived of self-control by grave and sudden provocation.

Put differ­ently, if death is caused under circumstances of grave and sudden provocation of the offender, it would not amount to murder, but only culpable homicide not amounting to murder; provided of course that the provocation is not sought voluntarily and is not due to exercise of the right of private defence or to the exercise of his lawful authority by a public servant in the exercise of his lawful duty.

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The law on the doctrine of provocation contained in S. 300, Ex­ception 1, was considered by the High Court at Allahabad in Yusuf v. State of U.P. (1973 A.L.J. 111), and it was observed that the applica­bility of the doctrine of provocation rests on the fact that it brings about a sudden and temporary loss of self-control. As laid down by Goddard, C.J. in R. v. Duffy, [194(1) All E.R. 932]:

“Provocation is 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 as subject to passion as to make him or her for the moment not master of his mind.”

The test applied is the conduct of the reasonable person in circum­stances which gives rise to grave and sudden provocation. In K.M. Nanavati v. State of Maharashtra (A.I.R. 1962 S.C. 605). Subba Rao, J., lay down:

‘What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values, etc.; in short, the culture, social and emotional background of the society to which an accused belongs.’

We are not to conjecture what an imaginary reasonable man would have done when placed in the circumstances of the accused; but we have to decide whether a particular offender in the circum­stances found, could reasonably be held to have been and actually was so suddenly and gravely provoked as to be deprived of his power of self-control and therefore, get benefit of the Exception No. 1 to S. 300, I.P.C.

If some other factors emanating from other sources intervene which lead to the provocation and the fatal blow cannot be traced directly to the influence of passion arising from the conduct of the victim, the accused is deprived of the benefit of the First Exception to S. 300, in mitigation of the offence which he has committed.

The provocation must be grave and sudden and of such a nature as to deprive the accused of the power of self-control. It is not a neces­sary consequence of anger or other emotion that the power of self- control should be lost.

The provocation must be such as will upset, not merely a hasty and hot tempered or hyper-sensitive person, but one of ordinary sense and calmness.

Confession of adultery by a wife to her husband who in consequence kills her, is such a provocation as would come under this exception; but similar confession of illicit intercourse by a woman who is not the wife of the accused, but only engaged to be married, cannot if he kills her in consequence, be covered by the exception and would of murder.

The law that a husband who discov­ers his wife in the act of adultery and thereupon kills her, is guilty of manslaughter and no’, murder, has no application where the woman concerned is not the wife of the accused.

However, if death of the adulterer be not caused in a fit of passion but with subsequent deliberation, and as result of cool and mature consideration, after the first excitement has passed away, it would be murder and not manslaughter.

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