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SC applies provocation exception, modifies conviction and sentence of lifer

SC applies provocation exception, modifies conviction and sentence of lifer
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New Delhi: The Supreme Court Tuesday modified the conviction and sentence of a man serving life term for killing his brother, saying the “acts of provocation” that led to the incident were sudden and grave and there was loss of self-control.
While applying the “provocation exception”, the apex court converted the man’s conviction of murder under section 302 of the Indian Penal Code (IPC) to Part 1 of section 304 which deals with punishment for culpable homicide not amounting to murder.
The top court, while noting that the appellant has undergone incarceration for over 10 years since September 2011, modified the sentence to the period he has already served.
A bench of Justices Sanjiv Khanna and Bela M Trivedi noted that according to the prosecution, the deceased was addicted to alcohol and used to constantly torment, abuse and threaten the appellant.
“Gravity of provocation turns upon the whole of 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,” the bench said.
The apex court delivered the verdict on an appeal filed by the convict, a resident of Durg district in Chhattisgarh.
It noted that on September 26, 2011 the appellant had himself gone to police station and confessed to the crime.
The bench observed that the case would fall under Exception 1 to section 300 of the IPC. Section 300 deals with murder and Exception 1 to this provision says culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The bench observed that gravity of provocation can be assessed by taking into account the history of abuse and need not be confined to the gravity of the final provocative act in the form of acts, words or gestures.
It also referred to the deposition of the younger brother of the appellant and the deceased. The apex court noted the younger brother had deposed that the deceased used to frequently drink alcohol, barely interacted with the family and used to debate and quarrel with the appellant.
It said the question of loss of self-control by grave and sudden provocation is a question of fact and the act of provocation and loss of self-control must be actual and reasonable.
It noted that the law attaches great importance to two things when defence of provocation is taken under Exception 1 to section 300 of the IPC — first is whether there was an intervening period for the passion to cool and for the accused to regain dominance and control over his mind, and secondly, the mode of resentment should bear some relationship to the sort of provocation that has been given.
“Last provocation has to be considered in light of the previous provocative acts or words, serious enough to cause the accused to lose his self-control. The cumulative or sustained 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,” the bench said.
The apex court said the prosecution 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.
The bench said to discharge this burden, the accused may rely upon the case of the prosecution and the evidence adduced by it 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 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,” it said.
The bench said there was a 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,” it said.
“Applying the provocation exception, we would convert the conviction of the appellant from section 302 to Part I of section 304 of the IPC,” the bench said, while partly allowing the appeal.

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