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This article is written by Richa Goel of Banasthali Vidyapith in which she had discussed the exception to murder and its case laws.

Introduction

Murder is a heinous offence which is punishable under the Indian Penal Code. Murder is defined in Section 300 where culpable homicide amounts to murder. Culpable homicide (Section 299) is genus and murder is its species. It is necessary that all murder is a culpable homicide but  not necessary that all culpable homicide is a murder. The punishment for the murder is defined in Section 302. There are certain exceptions provided in Section 300 which state the case of culpable homicide which does not amount to murder, which is punishable under Section 304 of Indian Penal Code.

The general exceptions to murder are described below.

Exception 1: Sudden and grave provocation

When the person losing his self-control by the sudden and grave provocation, causes the death of the person who gave the provocation or any other person due to a mistake or an accident then he will be liable for the culpable not amounting to murder. The essential conditions are as:

  • The accused had been provoked by the deceased.
  • Provocation needs to be sudden.
  • Provocation needs to be grave.
  • The accused had lost his self-control or controlling power.
  • The accused must have caused the death of the person who gave the provocation.
  • The accused must have caused the death during the continuance of his deprivation of the power of self-control.
  • The accused should not have malafide intention.

Example:

  • A gives a sudden and grave provocation to B by insulting and abusing his father. A loses his self-control and fires a pistol at B. Therefore, B died immediately. A is liable for the culpable homicide not amounting to murder.
  • Take the same example but in this case, Z was killed who was standing near to A.  A neither knowingly or intending to kill Z fires at B. But Z was killed by mistake and accident in this case also A will be liable for the culpable homicide not amounting to murder.
  • A was provoked by B on 6th May. A goes on 7th May at B ‘s house and killed B. In this case, A will liable for the murder because he was having sufficient time to be calm his temper and anger.
  • If the person has an intention to kill such a person then it will not fall under the exceptions. Example:- A being provoked by B kill B’s daughter intentionally. A will be liable for the murder as neither the death of the daughter was not caused by misfortune or accident nor A was provoked by B’ daughter.

In the case of K.M Nanavati vs the State of Maharashtra 1962 SCR Supl. (1) 567. This is a landmark case. The court observed that-

  • Gestures and words under certain situations cause sudden and grave provocation to an accused so as to bring his action under this exception.
  • For the purpose of determining the sudden and grave provocation, a test is established to find whether any other reasonable man having the same capacity and belonging to the same class or sections of society if placed in the same situations as accused would also be provoked as to lose his/her self control.
  • The background of the previous act of victim is to be taken into consideration in determining whether the subsequent act was sufficient to cause a sudden and grave provocation.
  • The fatal blow on the person giving a sudden and grave provocation should be immediately when he was provoked but not after the time which was sufficient for him to calm down or to cool down.

Certain exceptions of Exception 1

This section also has certain exceptions in which the offender will be liable for the culpable homicide amounting to murder.

  • The provocation must not cause intentionally from the act of the offender as an excuse to kill such person or any other person.
  • The provocation is not caused by anything which is done in accordance with the law, or by a public servant in the lawful exercise of the powers of any public servant. Example: A is lawfully arrested by C, a constable. A was provoked because he was arrested so he kills C. Here A will be liable for murder as C was exercising his public duty.
  • The offender must not have been provoked by the act of the person who is exercising his right to private self-defence.

Suljina Dhan vs  the State of Assam

Facts: there was a fight between the husband and wife. The husband was killed by the wife through axe. The wife took the plea that the axe fell on his husband by mistake.

Judgement: The Court held that the result was the outcome of the fight and such fight gave a sudden and grave provocation to the wife. So she should be fall under this exception. So the wife was liable for the culpable homicide not amounting to murder.

Mahmood vs State AIR 1961 All 538

The court observed that there are certain ingredients required to fulfil in order to come under the ambit of this section. They are as follows.

  • The provocation must be sudden- The term sudden constitutes two elements- the provocation needs to be unexpected.it means that it should not be planned beforehand. The time gap between provocation and homicide should be short.
  • The provocation must be grave- A mere statement given by the accused that he was provoked will not be accepted in the Court. The court needs to apply the objective test for determining whether there was a grave provocation or not.whether the reasonable man would do the same act if he would be placed in the same situation as the offender.
  • Losing a self- control- If the court is satisfied that the provocation was sudden and grave then the court will assume that he had lost his self-control.

In the case of Muthu vs State of Tamil Nadu on 27 September 2016, the Court held that continuous harassment would lead to the deprivation of the power of self-control. This will fall under this exception.

Exception 2: When the person exceeds his right of self-defence.

When the person has a good faith while exercising his right of private defence of property or person exceeds the power that is given to him and thus causing the death of the person against whom he is exercising his right without any knowledge or intention of doing anything more which is necessary for such purpose.

If the accused exceeds his right of private defence intentionally then he will be liable for murder but if it is unintentionally then he will be liable for culpable homicide not amounting to murder.

Example: B attempts to flogged A, not in such manner to cause grievous hurt to A.A  draws out his pistol, B persists in the assault. A believing that he had no potion to prevent himself from being flogged fires at B. A is liable for the culpable homicide not amounting to murder.

In the case of Ranbir Singh & Ors vs State of Haryana on 1 June 2018

The Court held that the burden of proving self-defence is on the accused. Such burden can be reduced by establishing a mere preponderance of probabilities either by laying the basis for that plea in the cross-examination of the prosecution witness or by adducing the defence evidence.

In the case of  Bhanwar Singh and others vs State of Madhya Pradesh on 16 May 2008

The court held that in order to take the benefit of this exception it is necessary to prove that the accused had the right of self-defence against the accused and this right extends to causing the death of the person. If this is proved then it would result in the application of Section 300 Exception 2. The court may reject the plea on the ground that the right to private defence exists but more harm was caused than was necessary or the right of private defence do not exceed causing the death of a person.

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Exception 3: When the public servant exceeds his power.

When any public servant or any person authorized by the public servant acts for the advancement of justice and exceeds their powers causing a death of person which in bonafide intention believes to be lawful and considered as necessary for the purpose of discharging his duty as a public servant and without ill treatment towards the person whose death is caused.

Example:–  A, police constable went to arrest the person. The arrested person was trying to abscond it. The police officer shoots him. A is not liable for murder.

Dukhi Singh vs State  1955 CriLJ 905

Facts: The appellant, a constable of Railway Protection Force( RFF) while discharging his duty shoots a fireman unintentionally. He fired a shot to catch the thief who was trying to run.

Judgement: the court held that the constable is entitled to the benefit of this section.

Exception 4: Sudden Fight.

Sudden fight means when the fight was unexpected or premeditated. There was no intention of either of the parties to kill or cause the death of any person.

It is not an important fact that which party has first assaulted or who have offered a provocation.

Essential Requirements

The case falls under this section only when the death is caused by:-

  • In the sudden fight.
  • In the heat of passion without any pre-planned arising from a sudden quarrel.
  • The offenders taking no unfair advantage.
  • The offenders not acting in an unusual or cruel manner.
  • The fight must be between the accused and the person who is killed.

Radhey Shyam And Another vs State of U.P on 20 August 2018

Facts: The appellant got infuriated when he was told that his calf had come to the place of the deceased and started abusing the deceased. when he was being stopped from being abuses then he fired at the deceased. At the time of the fight, the accused had a weapon but the deceased was unarmed. This indicated that the appellant had an intention to kill the deceased

Judgement: The case was held liable for the murder.

Dilip Kumar & Anr vs State of West Bengal  

Facts: The appellants had been objecting when the deceased uses his filed for the purpose of ingress or egress of the bullock cart. the complainant party armed with deadly weapon passed his bullock cart. There was a sudden fight and as a result of a fight, the appellant and other two accused person were injured they killed the deceased.

Judgement: The court considering the circumstances of the case held that this case will fall under this exception and the appellant will be liable under Section 204 of  Indian Penal Code.

In the case of  Surain Singh vs  State of Punjab on 10 April 2017

The Supreme Court stated the difference between two exceptions of murder . i.e. Exception 1 and Exception 4.

Both the exception based on the same principle but there is an absence of premeditation in both the cases.

In the case of Exception 1, there is total deprivation of self-control, while in the case of Exception 4 there is only a heat of passion which clouds men’s sober reason and encourages them to do which they would not do otherwise. There is a provocation in both the exception but in Exception 4  the injury caused is not the direct result of that provocation. However, Exception 4 states that deals with the cases in which notwithstanding that any blow which has been struck, or some provocation is given in the origin of quarrel or in whatever manner the quarrel has been started, yet the subsequent act of both the parties puts them in respect of guilt upon an equal footing.

In the case of Narayana  Nair vs the State of Travancore 1956 (0) KLT 92 SC

The court held that “ the fight must be with the person killed” in order to cover the case  within the ambit of this exception.

Exception 5: Consent

When the person gives consent to cause his /her death then it will be a culpable homicide not amounting to murder.

Essential requirements

  • The age of the person whose death is caused is above the age of 18 years.
  • Consent is given by the deceased.
  • Consent needs to be free. it must be voluntary.

Example: Anil, aged 16 years was abetted by A to commit suicide. Here, Anil was incapable to give his consent because he was immature and was below 18 years of age.  A is liable for Murder.

In the case of Vijay V vs the State of M.P on 16 August  2018

The court held that “ exception 5 to Section 300 must have strict interpretation. No liberal interpretation is to be made and in applying this exception the act which is alleged to be authorized or consented by the victim must be scrutinized closely.

In the case of Dashrath Paswan vs StaTe of Bihar on 19 January 2012

Facts: The accused was a student of class 10. He failed in his exam.  he has a wife aged 19 years. he decided to end his life and told about his decision to his wife . his wife asked her to kill herself first and then to kill himself. The accused killed his wife but before he would kill himself he was arrested.

Judgement: The court held that  deceased does not give her consent under the misconception of fact or under the feat of injury and therefore he is entitled to take the benefit of this exception

Conclusion

There is always an exception to everything. This exception is given in order to protect the accused under certain circumstances. But the court must scrutinize the case properly when the accused pleads for any of the exceptions of Section 300 in order to protect it from misuse of this section.

References

  1. https://indiankanoon.org/doc/626019/
  2. http://bdlaws.minlaw.gov.bd/sections_detail.php?id=11&sections_id=3161
  3. https://lawnn.com/murder-section-300-definition-meaning-exceptions-punishment-section-302/

 

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