LexBUDHI SINGH versus STATE OF H.P.
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A B [2012] 11 S.C.R. 848 BUDHI SINGH v. STATE OF H.P. (Criminal Appeal No. 1801 of 2009) DECEMBER 13, 2012 [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 0 assaulting his father, it can be reasonably held that there was 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-. F ss. 302 and 304 - Distinction between - Explained. · 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 inspire
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