DAUVARAM NIRMALKAR versus STATE OF CHHATTISGARH

Citation: [2022] 7 S.C.R. 5 · Decided: 02-08-2022 · Supreme Court of India · Bench: SANJIV KHANNA · Disposal: Case Partly allowed

Cited by 3 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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DAUVARAM NIRMALKAR
v.
STATE OF CHHATTISGARH
(Criminal Appeal No. 1124 of 2022)
AUGUST 02, 2022
[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
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
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
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
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
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
[2022] 7 S.C.R. 5
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
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
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
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.
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’
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
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
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
the pro

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