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”.

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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.

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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.

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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,

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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.]

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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.

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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.

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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.

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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

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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.

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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).

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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

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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’.

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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.

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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.

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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.

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