DAUVARAM NIRMALKAR VERSUS STATE OF CHHATTISGARH

DAUVARAM NIRMALKAR VERSUS STATE OF CHHATTISGARH


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1124 OF 2022
(ARISING OUT OF SPECIAL LEAVE PETITION (CRIMINAL) NO. 2481 OF 2022)
DAUVARAM NIRMALKAR ..... APPELLANT
VERSUS
STATE OF CHHATTISGARH ..... RESPONDENT
J U D G M E N T
SANJIV KHANNA, J.
Leave granted.
2. The appellant, Dauvaram Nirmalkar, has been convicted under
Section 302 of the Indian Penal Code, 1860,1
 for the murder of his
brother, Dashrath Nirmalkar, and sentenced to undergo
imprisonment for life, pay fine of Rs.1,000/-, and in default, to
undergo simple imprisonment for a period of six months.
3. Dr. Nohar Prasad Jangde (PW-12), the senior medical officer at
the Government District Hospital, Durg District – Durg,
Chhattisgarh, has proved the post mortem report - Ex. P-18, and
1 For short, “IPC”.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 1 of 16
has testified that Dashrath Nirmalkar had died due to coma as a
result of shock, in view of the injuries given on the scalp of his
head, causing multiple fractures on the skull bone. Dashrath
Nirmalkar suffered fractures in the left temporal, frontal, parietal,
and left occipital lateral side with a deep lesion. A lacerated wound
was also present on the chin. Homicidal death of Dashrath
Nirmalkar is not disputed and challenged before us.
4. On the question of the involvement of the appellant as the
perpetrator, we are in agreement with the High Court and the trial
court. No doubt the public witnesses, Manoj Vishwakarma (PW-1)
– a local teacher; Brijesh Sharma (PW-2) – a vegetable seller;
Bhagwati Prasad Nirmalkar (PW-3) – younger brother of the
appellant; Nakul Ram Sahu (PW-4) – neighbour of the appellant;
Treveni Bai (PW-7) – sister of the appellant; Geeta Bai (PW-8) –
sister-in-law of the appellant; Kumari Shanti Nirmalkar (PW-9) –
niece of the appellant; Kumari Madhu Nirmalkar (PW-10) – niece
of the appellant; and Kejauram Nirmalkar (PW-11) – half brotherin-law of the appellant had turned hostile, there is ample evidence
and material implicating and establishing the appellant’s
involvement beyond doubt.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 2 of 16
5. On 26th September, 2011, the appellant himself went to the police
station and confessed the crime, albeit, the confession is
inadmissible as proof of confession is prohibited under Section 25
of the Indian Evidence Act, 18722
. This Court in Aghnoo Nagesia
v. State of Bihar3
 has held that the confessional statement not
only includes the admission of the offence, but all the other
admissions of incriminating facts relating to the offence. The
severability test which was applied by some of the High Courts to
admit evidence, wherein each sentence is treated separately to
admit the non-confessional part, was held to be misleading and
consequently rejected. Thus, 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 under Section 27
of the Evidence Act, provided that the discovery of the fact must
be in relation to a material object.4
 We add that the conduct of the
appellant is relevant and admissible under Section 8 of the
Evidence Act.
2 For short, “Evidence Act”.
3 (1966) 1 SCR 134.
4 Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 3 of 16
6. In the present matter, on the disclosure made by the appellant, a
pick-axe was seized from a wooden box kept in the house where
the appellant used to reside vide Ex. P-1. The seized pick-axe and
the shirt of the appellant, which he wore at the time of the incident,
were found to be stained with blood. The disclosure made by the
appellant also led to the discovery of the body of Dashrath
Nirmalkar at the house where the appellant was residing.
7. It is an accepted position that the public witnesses, Manoj
Vishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati Prasad
Nirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai (PW-7),
Geeta Bai (PW-8), Kumari Shanti Nirmalkar (PW-9), Kumari
Madhu Nirmalkar (PW-10), and Kejauram Nirmalkar (PW-11),
though declared hostile, have more or less in unison deposed that
the appellant and Dashrath Nirmalkar used to stay in separate
rooms at the same house. Testimonies of Kumari Shanti Nirmalkar
(PW-9) and Kumari Madhu Nirmalkar (PW-10) are important as
they were present in the house at the time of the incident. Kumari
Shanti Nirmalkar (PW-9) had avowed that her sister Kumari
Madhu Nirmalkar (PW-10) had come and told her that their uncle
Dashrath Nirmalkar had died. Kumari Shanti Nirmalkar (PW-9)
had claimed that Kumari Madhu Nirmalkar (PW-10) had told her
that Dashrath Nirmalkar was killed by the appellant. However,
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 4 of 16
Kumari Madhu Nirmalkar (PW-10) did not profess to having made
any such statement, or that she had seen the appellant
committing the offence. At the same-time, Kumari Shanti
Nirmalkar (PW-9) and Kumari Madhu Nirmalkar (PW-10) have not
deposed about the presence of any intruder or third person that
night. No such suggestion was given to them in the crossexamination as well. Such suggestions were also not given to
Manoj Vishwakarma (PW-1), Brijesh Sharma (PW-2), Bhagwati
Prasad Nirmalkar (PW-3), Nakul Ram Sahu (PW-4), Treveni Bai
(PW-7), Geeta Bai (PW-8), and Kejauram Nirmalkar (PW-11).
Therefore, defence of the appellant in his statement under Section
313 of the Code of Criminal Procedure, 19735
 that some third
person had killed his brother Dashrath Nirmalkar, carries no
weight and has been rightly rejected. The appellant had suffered
from burn injuries in his hands, which the appellant had accepted
in his statement under Section 313 of the Cr.P.C. The appellant
had tried to commit suicide by catching live electrical wires, and
consequently he was charged for the offence under Section 309 of
the IPC6
. The appellant had admitted his guilt and was
consequently sentenced to undergo simple imprisonment for 10
5 For short, “Cr.P.C.”
6 309. Attempt to commit suicide. —Whoever attempts to commit suicide and does any act
towards the commission of such offence, shall be punished with simple imprisonment for a term
which may extend to one year 3 [or with fine, or with both.]
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 5 of 16
days vide Ex. P-33. Thus, the fact that the appellant and the
deceased were together the night when the deceased suffered the
fatal injuries is established and proven. Therefore, Section 106 of
the Evidence Act7
 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
Dashrath Nirmalkar.
8. However, in our opinion, this case will fall under Exception 1 to
Section 300 of the IPC8
. Bhagwati Prasad Nirmalkar (PW-3), the
7 106. Burden of proving fact especially within knowledge. –– When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him.
8 300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or—
Secondly. —If it is done with the intention of causing such bodily injury as the offender knows
to be likely to cause the death of the person to whom the harm is caused, or—
Thirdly. —If it is done with the intention of causing bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
Fourthly. —If the person committing the act knows that it is so imminently dangerous that it
must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits
such act without
any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. —When culpable homicide is not murder. —Culpable homicide is not murder
if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes
the death of the person who gave the provocation or causes the death of any other person by
mistake or accident.
The above exception is subject to the following provisos: —
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.
Explanation. —Whether the provocation was grave and sudden enough to prevent the
offence from
amounting to murder is a question of fact.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 6 of 16
younger brother of the appellant and the deceased, had deposed
that the deceased used to frequently drink alcohol, barely
interacted with the family, and used to debate and quarrel with the
appellant. Nakul Ram Sahu (PW-4), the neighbour of the
appellant, had similarly testified that the deceased was addicted to
alcohol and his wife had left him. Dashrath Nirmalkar’s addiction
to alcohol, and that he was extremely abusive and ill-tempered is
the common narration by Geeta Bai (PW-8), wife of Bhagwati
Prasad Nirmalkar (PW-3), and Kumari Shanti Nirmalkar (PW-9),
and Kumari Madhu Nirmalkar (PW-10), nieces of the appellant
and Dashrath Nirmalkar. The prosecution does not dispute this
position and in fact, has relied upon these facts to show motive.
9. Exception 1 differs from Exception 4 of Section 300 of the IPC9
.
Exception 1 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. Exception 1 also
9300. Murder. —
Exception 4. —Culpable homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken
undue advantage or acted in a cruel or unusual manner.
Explanation. —It is immaterial in such cases which party offers the provocation or commits
the first assault.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 7 of 16
applies when the offender, on account of loss of self-control due to
grave and sudden provocation, causes the death of any other
person by mistake or accident. Exception 4 applies when an
offence is committed without premeditation, in a sudden fight in
the heat of passion upon a sudden quarrel and the offender
commits culpable homicide without having taken undue advantage
of acting in a cruel and unusual manner. The Explanation to
Exception 4 states that in such cases it is immaterial which party
gives the provocation or commits the first assault.
10. Interpreting Exception 1 to the Section 300 in K.M. Nanavati v.
State of Maharashtra,
10 this Court has held that the conditions
which have to be satisfied for the exception to be invoked are (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
10 1962 Supp (1) SCR 567.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 8 of 16
whether or not the provocation had temporarily deprived the
offender from the power of self-control, the test to be applied is
that of a reasonable man and not that of an unusually excitable
and pugnacious individual. Further, it must be considered whether
there was sufficient interval and time to allow the passion to cool.
K.M. Nanavati (supra) succinctly observes:
“84. Is there any standard of a reasonable man for the
application of the doctrine of “grave and sudden”
provocation? No abstract standard of reasonableness
can be laid down. What a reasonable man will do in
certain circumstances depends upon the customs,
manners, way of life, traditional values etc.; in short,
the cultural, social and emotional background of the
society to which an accused belongs. In our vast
country there are social groups ranging from the
lowest to the highest state of civilization. It is neither
possible nor desirable to lay down any standard with
precision: it is for the court to decide in each case,
having regard to the relevant circumstances. It is not
necessary in this case to ascertain whether a
reasonable man placed in the position of the accused
would have lost his self-control momentarily or even
temporarily when his wife confessed to him of her illicit
intimacy with another, for we are satisfied on the
evidence that the accused regained his self-control
and killed Ahuja deliberately.
85. The Indian law, relevant to the present enquiry,
may be 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 may 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 whether the subsequent act caused grave
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 9 of 16
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.”
11. K.M. Nanavati (supra), has held that the mental background
created by the previous act(s) of the deceased may be taken into
consideration in ascertaining whether the subsequent act caused
sudden and grave provocation for committing the offence. There
can be sustained and continuous provocations over a period of
time, albeit in such cases Exception 1 to Section 300 of the IPC
applies when preceding the offence, there was a last act, word or
gesture in the series of incidents comprising of that conduct,
amounting to sudden provocation sufficient for reactive loss of
self-control. K.M. Nanavati (supra) quotes the definition of
‘provocation’ given by Goddard, C.J.; in R. v. Duffy,
11 as :
“...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 selfcontrol, rendering the accused so subject to
passion as to make him or her for the moment not
master of his own mind...[I]ndeed, circumstances
which induce a desire for revenge are inconsistent
with provocation, since the conscious formulation
of a desire for revenge means that the person had
the time to think, to reflect, and that would negative
11 (1949) 1 All.E.R. 932.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 10 of 16
a sudden temporary loss of self-control which is of
the essence of provocation...”.
12. The question of loss of self-control by grave and sudden
provocation is a question of fact. Act of provocation and loss of
self-control, must be actual and reasonable. The law attaches
great importance to two things when defence of provocation is
taken under Exception 1 to Section 300 of the IPC. First, whether
there was an intervening period for the passion to cool and for the
accused to 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. The retaliation should be
proportionate to the provocation.12 The first part lays emphasis on
whether the accused acting as a reasonable man had time to
reflect and cool down. The offender is presumed to possess the
general power of self-control of an ordinary or reasonable man,
belonging to the same class of society as the accused, placed in
the same situation in which the accused is placed, to temporarily
lose the power of self-control. The second part emphasises that
the offender’s reaction to the provocation is to be judged on the
basis of whether the provocation was sufficient to bring about a
loss of self-control in the fact situation. Here again, the court
12 See the opinion expressed by Goddar, CJ. in R v. Duffy (supra).
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 11 of 16
would have to apply the test of a reasonable person in the
circumstances. While examining these questions, we should not
be short-sighted, and must take into account the whole of the
events, including the events on the day of the fatality, as these are
relevant for deciding whether the accused was acting under the
cumulative and continuing stress of provocation. 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. 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.
13. Thus, the gravity of the provocation can be assessed by taking
into account the history of the abuse and need not be confined to
the gravity of the final provocative act in the form of acts, words or
gestures. The final wrongdoing, triggering off the accused’s
reaction, should be identified to show that there was temporary
loss of self-control and the accused had acted without planning
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 12 of 16
and premeditation. This has been aptly summarised by Ashworth13
in the following words:
“[T]he significance of the deceased’s final act should
be considered by reference to the previous relations
between the parties, taking into account any previous
incidents which add colour to the final act. This is not
to argue that the basic distinction between sudden
provoked killings and revenge killings should be
blurred, for the lapse of time between the deceased’s
final act and the accused’s retaliation should continue
to tell against him. The point is that the significance of
the deceased’s final act and its effect upon the
accused – and indeed the relation of the retaliation to
that act – can be neither understood nor evaluated
without reference to previous dealings between the
parties.”
Exception 1 to Section 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.
13 1975 Criminal LR 558-559, and George Mousourakis’s elucidation in his paper ‘Cumulative
Provocation and Partial Defences in English Criminal Law’.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 13 of 16
14. Following the view expressed in K.M. Nanavati (supra), this Court
in Budhi Singh v. State of Himachal Pradesh14 observed that in
the test for application of Exception 1 to Section 300 of the IPC,
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. A significant observation in
Budhi Singh (supra) is that the provocation may be an act or
series of acts done by the deceased to the accused resulting in
inflicting of the injury. The idea behind this exception is to exclude
the acts of violence which are premeditated, and not to deny
consideration of circumstances such as prior animosity between
the deceased and the accused, arising as a result of incidents in
the past and subsequently resulting in sudden and grave
provocation. In support of the aforesaid proposition and to convert
the conviction from Section 302 to Section 304 Part I of the IPC in
Budhi Singh (supra), the Court also relied upon Rampal Singh v.
State of Uttar Pradesh15
.
14 (2012) 13 SCC 663.
15 (2012) 8 SCC 289.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 14 of 16
15. For clarity, it must be stated that the prosecution must prove the
guilt of the accused, that is, it 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. However, to discharge this burden
the accused may rely upon the case of the prosecution and the
evidence adduced by the prosecution 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.
There was sudden loss of self-control on account of a ‘slow burn’
reaction followed by the final and immediate provocation. There
was 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.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 15 of 16
16. Applying the provocation exception, we would convert the
conviction of the appellant from Section 302 to Part I of Section
304 of the IPC.
17. On the question of sentence, we have been informed that the
appellant has already suffered incarceration for over 10 years, as
he has been in custody since 27th September, 2011. In the
aforesaid circumstances, we are inclined to modify the sentence
of imprisonment to the period already undergone. In addition, the
appellant would have to pay a fine of Rs. 1,000/- and in default,
will undergo simple imprisonment for a period of six months. On
payment of fine or default imprisonment, the appellant is directed
to be released forthwith, if not required to be detained for any
other case.
18. The appeal is partly allowed modifying the conviction and
sentence in the aforesaid terms.
......................................J.
(SANJIV KHANNA)
......................................J.
(BELA M. TRIVEDI)
NEW DELHI;
AUGUST 02, 2022.
Criminal Appeal a/o. SLP (Crl.) No. 2481 of 2022 Page 16 of 16

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