Tilok Rajowar @ Hakim vs State of Assam

K.N. Saikia J.

A hungry man is an angry man. Human nature transcends the boundaries of municipal laws. But ''crimen trahit personam''. Crime carries the person. Place of crime gives jurisdiction to the court of that place over that person.

Sadbu, a beggar, came to live at Takalimara gaon constructing a but within the orchard of Padmeswar Rajowar, P.W. 5, a labourer of Tinalipam Tea Estate. Tilak Rajowar, a day labourer also came to live with Sadbu. Income of both of them being meagre and uncertain, as if they founded a borne in destitution. On 13.9.78 receiving a telephone message from the Manager of Tinalipam T.E. to the effect that Tilak Rajowar (Appellant) had killed Sadbu (deceased) Sonari P.S. made G.D. Entry No. 315 and P.W. 8 took up investigation and reached the place of occurrence at 11.45 p.m. held inquest (Ext. 2) over the dead body which was under a heap of stubbles, seized a dao produced by Tilak, sent the dead body for autopsy, recorded statements of some persons and arrested the accused. Padrneswar submitted the ejabar (Ext. 3) written by Mahesh.

On 14.9.78 Dr. B.C. Kakoii (P.W. 1) of Sibsagar Civil Hospital performed autopsy on Sadhu''s cadaver and found the following injuries:

(1) One stab wound length 1" x 3/4" muscle deep in front of the neck in the middle third.

(2) One stab wound size 1" x 1/4 " bone deep on the right parietal region.

(3) Stab wound over the disfused tumour on the occipital region in size 1" x 1/4 x bone deep.

(4) One stab wound 1'' x 1/4 x into lung tissue on the right side of the chest.

Opening the wound (1) Trachea cut into two pieces injury No. 1. Pluera cavity contained blood amounting 1.2 litres. Right lung congested and injured under cause of injury No. 5.

(5) Multiple punctured wound over both the legs. Oesophagous cut to pieces under injured No. 1. Under cause of injury No, 2, ramons of the mendicle was fractured. There was clotted blood in and around the injured tissues.

In his opinion the injuries were anti mortem end death was due to shock and hemorrhage resulting from the injuries. The injuries No. 1 and 3 independently of fill of all other Injuries were sufficient to cause death in the ordinary course of nature. The injuries could be caused by the dao, M. Ext. 1.

On 15.9.78 Magistrate 1st Class, Sib-agar recorded Tilak''s confessional statement, Ext. 5, which was?

Both Sadhu alias Sainbaru Gar and I had been living together in the same house at Tekelimaragaon for about one year. On 13.9.78 at about 6.30 P.M. evening, a quarrel took place between said Sadhu and me for rice. I asked for some...rice from Sadhu but he did not give. When he refused to give me rice a quarrel took place between him and me and I killed Sadhu by cutting with a ''dao''. Thereafter I kept the deadbody of Sadhu covered under stubbles of paddy at the courtyard. After some time the public caught hold of we and by calling the police put me in their custody.

At the Sessions Tilak pleaded not guilty to the charge u/s 302 I.P.C. Prosecution examined 8 witnesses while defence examined none, Prosecution evidence was that on 13.9.78 at about 5/5. 30 p.m. Guna Rajowar, P.W. 4, then a ploughman of Chikan Pator, P.W. whose house was opposite those of Padmeswar and Sadhu across the road 12/13 nale away, while going to fetch. betel put from their home beard ''dhap'' ''dhap'' souond at Sadhu house and asked Tilak what he was doing but receiving no reply from anyone he reported to Chikao who rent to Sadhu''a house and coming back said that Sadbu bad been killed. Chickan told Padmeswar about Tilak having cut Sadbu and was instructed to inform V.D.F. Biddh Goala was sent and be informed Kanak Gogoi V.D.P. Secretnry who came and found Tilak being confined by the people at nearby Babulal''a shop. When asked, Tilak confessed his guilt. Benudbar Sevak (P.W. 2) was sent to inform the Manager of Tinalipan T.E. who telephoned to than a whereupon the G.D. Entry was made. Chikan Pator corroborate Guna Rajowar in that being told by Guna he also heard "Dhap dhap" sound and coming to Sadbu''s house, he saw Tilak was dealing ''dao'' blows on Sadbu who was lying voicaless inside his bottle. When asked what be was doing, Tilak told Chickau "He careful; do not some here". ("Khabardar, idharme mot awo"), Chickan in fear ran to Padmeswar''s house and told about it nut padmesswar being ill went inside and Chikas looking back saw Tilak dragging out Sadha, almost dead , from inside the house to its courtyard and giving 2/3 more dao blows. Chikan then sent men to inform V.D.P. Secretary, Kanak Gogoi. By the time Kanak came 15/20 people gathered and, though dark first gheraod Sadhus'' house but gave Tilak and opportunity to go out towards Babulals'' house but gave Tilak as opportunity to go out towards Babulals'' where public confined Tilak who said . "I have not done any thing to you, why have you bold me? I bave killed Sadbu". Tilak himself showed the dead body of Sadbu under a beap of at raw. Meanwhile police arrived and arrested Tilak.

The ocular evidence is amply corroborative of medical evidence. State defence was provided after charge was framed. The witnesses were cross-examined but could not be dislodged or belied.

Death of Sadbu as a result of the injuries was not iq doubt. The question was who inflicted these injuries? The prosecation relied on the extra judicial confessions, the confessional statement, which was pot retracted, and the evidence of the eye witnesses, namely, P.Ws. 3 and 4 which was corroborated by medical evidence in ample measure. In his statement u/s 313 Code of Criminal Procedure. Tilak admitted the confessional statement to be true and further said:

The charge is true. I was in hunger. I had no money in hand, I asked him for a little foodstuff for that evening, he did not give me. He was to pay me money I asked him the money, but he did not give the money also. I was angry. I took the "dao" up and have him several blows (thrusts); he died. He remained dead inside.

I kept the dead body at the courtyard by dragging it out from inside the occurrence. I told the facts before the Magistrate after the occurrence. I did not cancel anything.

He also said that be was guilty. On the basis of the evidence on record Tilak haying been found guilty convicted u/s 302 I.P.C. and sentenced to imprisonment for life and fine of Rs. 100/-, in default R.I, for one month more, he now appeals.

Mr. B.D. Agarwal for the Appellant mainly submits that the Appellant having been hungry and denied food or money there was a scuffle resulting in grave and sudden provocation exciting, Tilak as a result of which he dealt dao blows on Sadhu and a such the case comes under Exception 1 or 4 to Section 300 I.P.C. and hence it is punishable u/s 304 and not 302.

Mr. C. Baruab, public prosecutor replies that judged by the nature of the injuries inflicted on vital parts and the dangerous nature of the weapon used, it is a clear ease of murder Exceptions 1 and 4 to Section 300 I.P.C. do not apply, and the Appellant bas been rightly convicted.

We examine the applicability of Exception 4 to Section 300 I.P.C. Thereunder "culpable homicide is not murder if it is committed without premeditation in a sudden fight in the beat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel and unusual manner. Explanation: It is immaterial in such case which party offers the provocation or commits the first assault". In the instant case there was no premeditation or malice prepense. The quarrel, if any, was sudden and the Appellant, a hungry and angry man, was provoked by the unkind refusal of Sadbu either to give a morsel of food or to repay the money he owed. They had been partners in proverty and be earlier helped Sadhu by lending money why then Sadbu refused to oblige Tilak in his hour of starvation? Sadbu''s offering the provocation can reasonably be accepted. It is Tilak''s own statement that be dealt dao blows on Sadbu and there is no thing to show that Sadbu retaliated in course of the quarrel. But can it be said that Tilak did not take undue advantage or did not act in a cruel or unusual manner. Tilak had the dao but there is nothing to show that Sadhu was armed. Under such circumstances while dealing all the five dao blows on unarmed Sadhu it cannot be said that Tilak did not take undue advantage. There is also evidence of cruelty in the way and the parts of the body the cuts were inflicted. When Sadbu was almost dead, Tilak dragged him out to the courtyard and inflict two-there more injuries, as if to show his powers over the dying roan and finalise his death, Thereafter he concealed the cadaver under stake of paddy stubbles. Under the circumstances we bold that Exception 4 does not apply.

10A. Next we consider Exception 1. Thereunder culpable be micide is not murder if the offunder, while deprived of the power of self-control by grave and midden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. This Exception is subject to three provisos, namely, first, that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. The other two provisions are not relevant for this case. As explained, whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

In K.M. Nanavuti v. State of Maharashtra AIR 1962 85 the Indian law was 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, words and gestures any 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 there 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 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.

In Rajaram v. State of Maharashtra AIR 1992 SC 31, it was held that grave and sudden provocation is a mixed question of law and facts and it is imcumbent upon the High Court to examine that defence and record its own finding on the point. Culpable homicide not amounting to murder is an intentional killing when the accused was provoked to kill by an adequate provocation and acting while provoked, before sufficient time had passed for u reasonable man to have cooled off, It is not the provocative acts of the victim at such that reduce the murder to culpable homicide not amounting to murder, but their effect on the offender. The most extreme provocation does not affect the result if it does not deprive the offender of self-control one who responds to a provocation by coolly killing the person who provoked him is guilty of murder, not culpable homicide not amounting to murder.

The rule that the conduct be judged by the standard of a reasonable man resulted in development richer than rigid rules about the kinds of provocative acts that were adequate a violent assault by the victim and discovery of the victim committing adultry with one''s spouse were the paradigms or examples of adequate provocation. On the other end, abuse by means of ''mere words'' is the paradigm of inadequate provocation. Other, less certain categories are assault or a threat of assault on oneself or physical violence inflicted on a near relative. Whatever be the nature of the provocation, it is not adequate if the offender responded by intentionally killing someone other than the source of the provocation. If, on the other hand, be directed his response against one whom he mistakenly believed to be the source of the provocation, or if accidentally or negligently killed someone other than his Intended victim, the provocation may be allowed. The general requirement of law is that the homicidal response is to be reasonably related to the nature and source of the provocation.

The doctrine of the reasonable man has to be applied rather cautiously. At one stage the view has been that the provocation must be such as to affect a reasonable man. It was required to be seen whether the act was such that it could be attributed to the person of passion, naturally arising therefrom and likely to be aroused thereby in the breast of a reasonable man; something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act. The Court shall take into account everything both done and said according to the effect which, in its opinion, it would have on a reasonable man. However, no Court has ever given, nor can ever give, a definition of what constitutes a reasonable or an average man. This must be left to the decision of the Court. No doubt, this test is often criticised to be lnequitable. If the accused is mentally abnormal or is of subnormal intelligence or is a foreigner of more excitable temperament or is for some other reason peculiarly susceptible to provocation, it is neither fair nor logical to Judge him by the standard of the ordinary reasonable man. However, the Royal Commission on Capital Punishment in England did not feel justified in recommending any change in the law, saying-

It is a fundamental principle of the Criminal law that it should be based on a generally accepted standard of conduct applicable to all citizens and it is important that this principle should not be infringed. Any departure might introduce a dangerous latitude into the law. Those idiosyncrasies of individual temperament or mentality that may make a man more easily provoked or more violent in his response to provocation, ought not, therefore, to affect his liability to conviction, although they may justify mitigation of sentence.

The cooling-off doctrine is another aspect of the requirement that the provocation be adequate. A person is expected to regain control of himself within a reasonable period, Prolonged or renewed rage after enough time to cool off has elapsed does not reduce murder to culpable homicide, whatever be the actual provocation. Only grave and sudden provocation is taken into account by law, though often it is the case that brooding over an injury may reduce rather than increase self control. In K.M. Nanavati (supra) when Sylvia, the accused, confessed to her husband that she had illicit intimacy with Abuja (deceased) who was not present there, it could be assumed that he (husband) bad mentally lost his self-control. But then the Appellant drove his wife and children to a cinema, left them there, went to his shop, took a revolver on ft false pretext, loaded it with ate rounds did some official business there, and drove his car to the office of Ahuja and shot him dead, Between the time when be left his house, and the time when the murder took place, three hours bad elapsed; there was sufficient time for the accused to .regain his self-control, even if he bad not regained it earlier. The facts did not attract the provision of Exception, 1 to Section 300 I.P.C. On the other hand, in Hansa Singh Vs. State of Punjab, the Appellant seeing the deceased committing the act of sodomy on his son, lost bin power of self control and It was undoubtedly a grave and sudden provocation for him which lid him to commit the murderous assault on the decreased. So be was confuted u/s 304 Part It and sentenced to the period already undergone, which was 7 year. In Dattu Gemu v. State of Maharashtra AIR 1974 Cri. L.J. 446. a month before the assault the decreased had attempted to outrage the modesty of the Appellants wife. The interval between that modesty of the assault was to be too long to afford the Appellant the benefit of the plea of grave and sudden provocation.

The recent trend in penology is to eliminate categorical restrictions of the provocation that may be adequate and to treat as culpable homicide which would otherwise be murder when it is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The Court is to determine whether the offender''s loss of self control is reasonably comprehensible, without prescribing in advance what sorts of provocation in what circumstances may meet that standard. A related question is whether the adequacy of the provocation should be measured from the point of view of an "ordinary reasonable man" or from the point of view of the offender, taking into account the idiosyncratic feature he possesses. Offender often claims that provocation which would have been inadequate for an ordinary reasonable map was adequate is his case because of some factor peculiar to factor that made the provocative to unusually disturbing. Here again the trend of penology is to relax its earlier insistence on an objective standard, without, however, doing away with the requirement that I the offender''s behavior be objectively comprehensible. The reasonableness of the offender''s explanation or excuse for his disturbance is to be determined from the view point of a person in the offender''s situation. Offender''s physical handicaps are taken to be part of his situation but that idiosyncratic moral values are not; for the rest, the reference to the offender''s situation is to be decided by the Court when ambiguous.

While applying the notion of a reasonable man the Court should apply the standard of reasonable man of the society to which offender belonged. As was ruled in Gyanendra Kumar Vs. The State of U.P., what is grave and sudden provocation in one set of society may not be grave and sudden provocation in another.

At common law provocation is available as defence of murder only where there were act which were assaults. The term provocation used with reference in a offence of which an assault is an element, means and includes except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person; or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive him of power of self control, and to induce him to assault the person by whom the act or insult is done or afforded. When such an act or insult in done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid; the former is said to give the latter provocation for an assault. A lawful act is not provocation to any person for an assault. An act which a person does in consequence of incitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault, An arrest which is unlawful is not necessarily provocation for an assault but it may be evidence of provocation to a person who knows of the illegality. A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if be is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool, provided that the force used is not disproportionate to the provocation, and is not intended, and is not such, as is likely to cause death or grievous bodily harm. Whether any particular net or insult is such as to be likely to deprive an ordinary person of the power of self control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of sail control, and whether any force used ii or is not disproportionate to the provocation, are questions of fact. However, all the objective elements of the distinction between murder and culpable homicide not amounting to murder cannot be allowed to be swept away and replaced by an assessment of the offender''s subjective culpability.

As suggested by Glanville Williams, for applying the exception of grave and sudden provocation, "two questions need be asked: (1) Did the Defendant as the assaults of provocation lose his self-control? If the answer is "No, he certainly did not", then there is no provocation and you should convict of murder. But the burden of proving absence of provocation is on the prosecution, so if your answer is "Yes, he may have", then the Defendant is over the first hurdle. (2) The question you then have to ask yourselves is was the provocation enough to make the reasonable man to do as the Defendant did? These two questions are sometimes lebelled as subjective and objective, the subjective relating to the Defendants loss of self control, and objective being an evaluation in terms of the hypothetical reasonable man. But, in fact, the so called subjective question involves an non-subjective element: the recency of the provocation". In other words, the law requires two things: first that there should be provocation; and secondly, that the fatal blow should be clearly stressed to the influence of passion arising from that provocation. Court is to see whether the blow given by the accused was produced by the passion and manner excited by that assault. "If you see that a person deals, by the manner in which he avenges a previous blow, that he is not excited by a sudden transport of passion but under the influence of that wicked disposition with bad spirit, which the law terms as malice in the definition of wilful murder, then the offence would not be manslaughter''''. Applying the law laid down in Nanavati (supra) it was held is Sonti Konwar v. State of Assam (1984) 1 GLR 241 that the mental background created by the previous act can be taken into account in ascertaining whether the subsequent act caused grave and sudden provocation.

Though ''mere words'' may not always cause provocation, in appropriate cases it may disturb the mental balance of the offender and Court has to consider it in awarding sentence. In Faquira Vs. State of U.P., one Bhukan brought Faquira and Shiamlal, Appellants in his rickshaw from which they got down and the Rickshawala and its two occupants came and asked khosha keeper Smt. Uttamia to give some potato chops to them. She replied that she would give them only after Chhanga had been served. Faquira and his two companions took offence and insisted on having priority over Chhanga. Chhanga objected saying that he was flitting a chop prepared for himself and must have it first and they could get theirs only after he had been served. An exchange of hot words and abuses followed. Getting infuriated Bhukan and Shiamlal telling Faquira that Chhanga was "a great bully", caught hold of Chhanga, dragged him to the chabutra and Faquira whipped out a knife and inflicted successive knife blows on Chhanga who died. Faquira was sentenced to death but in appeal Supreme-Court observed. "We do not know whether it was hunger or something else behind the whole affairs or the nature of abuses burled by the deceased that provoked the Appellants so much". "These circumstances do indicate that the deceased had said something which strongly disturbed the mental balance of Faquira and his companions Faquira''s death sentence was, therefore, reduced to life imprisonment. Though it was not a case of grave and sudden provocation, it shows the Court''s consideration of disturbance of the mental balance of the offender for sentencing.

Returning to what happened at Sadhu''s cottage, and applying the law as discussed above, we find that prosecution has not given us the details and sequence of the occurrence. From the confessional statements and that u/s 313 Code of Criminal Procedure we do not find any word, abuse or insult hurled by Sadhu. Nor is there any evidence of his assulting Tilak, first or in retaliation. Mere refusal to have his rice or to repay the money by itself, without anything more, could not ordinarily amount to grave and sudden provocation. Otherwise even a person committing dacoity with murder may say that there was grave and sudden provocation by refusal to hand over the property to him by the victim owner. Doing something lawful ought not to assaultin provocation. Being hungry also will not be a defence. The hungry beggar is not to be provoked by refusal by the food stalls to give him free food, otherwise right to property may be negated. However, we must place ourselves in the situation of the Appellant. In the instant case the details, origin and sequence of the quarrel has not been given by prosecution. Over and above what has been stated by Tilak himself, there is evidence of scuffle as indicated by the "dhap dhap" sound. Something must have been said or done by Sadhu that to much provoked and enraged his partner in proverty, who earlier helped him with money, so as to deal repeated blows on him with the dao be found handy. The society of the Appellant and the deceased will be relevant and the provocation is to be judged with reference to it. We have no doubt that the provocation was enough to make a reasonable man belonging to Tilak''a society to lose self control and to do as Tilak did in the case in the situation he was. In the State of Bihar v. Mohd. Khursheed AIR 1971 SC 2268 wherein an appeal against conviction for murder the High Court altered the conviction to one u/s 304 Part I.P.C. on its finding supported by evidence that there was a clash between the accused and the debased at the time of occurrence and the prosecution was unable to explain the manner and origin of the fight, the Supreme Court refused to interfere in appeal by special leave giving the benefit of doubt as to origin of the fight to the accused. In the case at hand from the forthright statements of the Appellant we have no doubt that there was grave and sudden provocation which so much enraged Tilak to inflict repeated dao blows on Sadhu without pre-meditation, in heat of passion, losing self control; and being perplexed at what he did, tried to cover the dead body by paddy stubbles. When the Appellant was hungry and wanted a morsel of food nobody gave him, then why should he be given the severe punishment for what be bud done being suddenly and gravely provoked ? The prosecution has failed to prove absence of provocation. After all, a hungry man is an angry man. This finding is based on subjective analysis considered objectively. We do not find in Tilak any wicked disposition with bad spirit.

In the assaults, we alter the conviction of Tilak Rajowar from one u/s 302 I.P.C. to that u/s 304 Part I, I.P.C. and sentence him to rigorous imprisonment for the period already undergone, which amounts to about eight years. He shall be set at liberty forthwith.

We record with appreciation the assistance rendered by Mr. B.D. Agarwal, Amicus Curiae.

Appeal partly allowed.

B.L. Hansaria, J.

After having read the exhaustie and erudite judgment of my learned Brother, I would not have said anything of my own in normal course but the fact that the case deals with a hungry and truthful accused has provoked me to say a few words. For this, the facts, of the case are not required to be set out in detail, as the same have been laid bare in the leading judgment. I shall focus the prominent features only. The same are that Tilak, a day labourer, killed his "partner in poverty" Sadhu, a beggar. At the relevant time, they were living together. The latter was fortunate on 13.9.78 to have morsels of rice in his bowl. The day labourer had returned empty handed, but empty stomach demanded some sustenance. Request was made to the deceased to share his rice with the accused. The former demurred, not knowing whether he would be fortunate next day to receive sufficient aims. But the accused wanted some rice badly. This plea having met ''No'', the accused asked for repayment of some money lent to the deceased. This request also received a ''No''. On refusal, an altercation and scuffle ensued which provoked the accused in backing his colleague with a dao. The protective instinct required shielding of the crime; but this could not last long, as the long arm of law reached the assailant soon after the crime. He was produced before a Magistrate and the accused made clean breast of everything; and see be stuck his confession till the close of the trial and admitted his guilt when he was questioned by the Court u/s 313 of the Code of Criminal Procedure. How many accused would do so? Perhaps microscopic minority. Does the accused not deserve clemency of law for being truthful throughout?

I would further say that the time has perhaps come when law should shed its shyness in coming to the aid of poverty driven criminals because the State and society are also responsible for their wretched condition. If there would have been a scheme of social insurance, a person like the accused at band would not have found himself behind icon bars and stone walls he would have perhaps been seen doing some constructive work as a day labourer contributing thereby to the wealth of the nation. I would think that Article 14 which forbids unreasonableness in any State action would require us to take such a view of the crime committed in the present case which would not be regarded as unreasonable by the society, majority of whose members are poverty stricken. The accused had a right to live and if that right was denied, would he have not nursed a feeling of neglect making him susceptible of as provocation? Such a person may not be required to pay so deatly for the crime committed on grave and sudden provocation as to find him in jail for the entire life, 8(eight) years is a sufficiently long period for a crime like the one at hand.

With these words. I agree with my learned Brother.