(I am delighted to host a guest post by Mr. Anant Sangal, currently a III Year student of the B.A. LL.B. (Hons.) Program at the National Law University, Delhi)
The Supreme Court of India (SC) recently expanded its criminal jurisprudence by handing down a decision in the case of Nawaz v. The State Represented by the Inspector of Police [Crl. Appeal No. 1941/2010, decided on 22.01.2019]. A Division Bench headed by Shantanagoudar J. (writing for himself and Maheshwari J.) modified the conviction from murder to culpable homicide not amounting to murder. The appellants had been charged for murdering the husband of one of the appellants (Ragila). The prosecution case was that the deceased suspected that his wife and his daughter had illicit relations with the other appellant (Nawaz). One morning, deceased called both the mother and daughter “prostitutes”.
A quarrel broke out between Ragila and the deceased and as a result, Ragila slapped the deceased. He fell on the floor and both the appellants, thereafter, throttled him with the help of a towel and burnt the body in order to conceal the offence and transported it elsewhere. The appellants were convicted by the trial Court for murder u/s 302 r/w 34 of the IPC, and the verdict was upheld by the High Court. However, the SC held that the appellants were “provoked” by the accused on his usage of the word “prostitute” for his wife and daughter and hence, were eligible to be covered by Exception 1 of Section 300 IPC. This made them punishable u/s 304 Part I instead of (earlier) Section 302 IPC.
Out of many factors which leave the judgment prone to attack, the ruling does not fall in line with the jurisprudence of the Court which has evolved through a variety of similar judgments. Apart from missing the ‘fit’, the Court also gravely erred in deciding and upholding what was not argued before it as well as in misconstruing the facts.
Facts and the Fit: Instilling Realist Traditions
In this judgment, there appear to be two emerging legal flaws, amid a wrong reading of facts by the SC. They are – (1) provocation not being grave and sudden; (2) elapsing of time between provocation and crime.
To begin with, I would establish the first flaw in the judgment i.e. the need for grave and sudden provocation. Neither merely grave, nor only sudden provocation, attracts the defence of Exception 1. Both these effects must occur together. Contrary to this, Shantanagoudar J. holds that the appellants were “provoked” which lead them to committing the crime. He does not establish the requirements of the provocation being grave as well as sudden. The application of Exception 1 to Section 300 is, therefore, wrong and is not justified.
In Nawaz, what appears is that provocation was only sudden but not grave. This is because in a fit of sudden provocation, the appellant slapped the deceased owing to which, he fell down. Thereafter, a towel was procured (as there is no discussion about a towel when they were engaged in a verbal quarrel) and the same was ‘thereafter’ used to throttle the deceased. It was held in Kanhaiyalal v. Emperor, that the effect of such grave and sudden provocation must be the loss of self-control. Had it been for loss of self-control for the appellant, the appellant would not have looked for a towel but would have simply proceeded to throttle the deceased using her bare hands, or whatever would have been the immediate possible response.
What would qualify as grave and sudden provocation has been defined by the SC in BD Khunte v. Union of India & Ors. There, it held that the response to such provocation must be immediate and the cooling-off period must be absent. If the response to the provocation has been preceded by a cooling-off period i.e. where the accused received sufficient time to cool down his anger, the defence of Exception 1 would not be attracted. In this case (Khunte), a jawan killed his superior in the evening because the superior had given him beatings earlier that day. The Court ruled that Exception 1 would not be attracted due to sufficient time as the “cooling-off” period between the provocation and the killing of the superior. Since the act of killing took place after almost 7 hours of the incident, the intention element was present while committing the murder.
As per Exception 1 to Section 300, the offence would not be a murder when the offender is deprived of the power of self-control by grave and sudden provocation. Therefore, going back to Khunte, counsel for the defendant argued that the provocation continued to remain grave for 7 long hours. The Court rejected this contention, and held that it is impossible for graveness to continue for seven hours, and hence, this defence was rejected by the Court. The failure on behalf of the Court in Nawaz to discuss Khunte is an apparent shortcoming.
Similarly, in Prabhakar Vithal Gholve v. State of Maharashtra the SC decided that the case fell within the ambit of Exception 1 as opposed to being an offence under Section 302. The dispute there was very minor, and in a fit of rage, the accused-appellant attacked the deceased on her head using a stick, owing to which, she later succumbed to injuries. The injuries proved fatal subsequently. The Court held that the manner of committing the crime as well as lack of a motive clearly prove that the offence is one not under Section 302. Though in this case, there was a break between the provocation and crime, but the Court’s main holding is on the point that the mode of attack was not designed to reflect murder. This is the reason why the defence of Exception 1 was extended to the appellant.
Subsequently, in Chaitu & Ors. v. State of Uttar Pradesh, where a quarrel arose between two parties over water sharing, one of the parties injured the other in the heat of passion, who succumbed to injuries the next day. The Court extended Exception 1 to cover the case of the appellants and held them liable only for culpable homicide not amounting to murder. However, in Nawaz, the manner of committing the crime, i.e. ensuring that the person dies after being slapped, reflected that the appellant-accused developed the intention to kill and thus, at that point, the element of suddenness was lost. This act of the accused clearly shows that they shared common intent to kill the deceased and they succeeded in doing so. As a result, the Court erred while adjudicating on the graveness and suddenness element of the crime.
Secondly, in Nawaz some time had lapsed between the provocation and the crime committed. This time period is known as the "cooling-off" period. It is, however, impossible to lay down a hard and fast rule as to when a person should be said to have had time to cool down and thus to be deprived of the benefit of Exception 1. It largely depends on the individual characteristics of the accused as well as on the facts of the particular case. In this context, while discussing the shortcomings of the judgment in Nawaz, the most relevant case is that of Yasin Sheik v. Emperor. There, the appellant got to know his wife's extra-marital affair, hit her, took her to the river bank, and cut her head off. The act was rightly held to be no longer merely homicide by reason of the time which had elapsed.
If we look at Nawaz, in paragraph 4, the Court says, “Since the deceased did not stop, Accused No. 2 slapped the face of the deceased. Immediately, thereafter, both the accused throttled the deceased with the help of a towel and burnt the dead body to try to conceal the offence. Subsequently, they transported the dead body in a Maruti Car owned by PW 15 and abandoned the body elsewhere.” As per this observation, it seems that after slapping the deceased and before throttling him using a towel, there was a short time-span, where the appellants could have deliberated upon the decision as to what should be done next. However, they proceeded ahead with throttling and murdering him.
It could also be a case that the deceased did not die immediately upon being throttled. To make sure that the deceased was dead after he was slapped, they not only throttled him, but the body was taken to some place and was thereafter burnt. This clearly establishes that they intended to kill the deceased after he was initially slapped. The cooling-off period appeared twice, so to say. For the first time, it was between slapping and throttling using the towel, and the second time, between throttling and burning his body. Therefore, the Court neglected the existence of this cooling-off period as well and decided the case in its absence itself.
Conclusion: The Road Ahead
One problem with the decision in Nawaz is that it could be misused. This is because the Court does not visit any of the precedents which deal with identical issue of law and the judgment harps only on the construction of facts. As an appellate Court of the highest order, the Court has to limit itself to answering the questions of law. This does not mean that interpretation of facts is absolutely forbidden but apart from interpreting the facts, the Court should have limited its role to – (1) interpreting and discussing the law laid down in previous judgments of the SC itself, and (2) interpreting the provision of Exception 1 to Section 300 IPC. However, both elements are absent from the judgment.
Apart from being legally flawed, Nawaz lays down a dangerous precedent for future courts to adhere to. This is because the case dilutes the exception of grave and sudden provocation by loosely reading the facts of the case, in a manner contrary to existing law. In future, if a similar question arises before any trial court or even a High Court for that matter, it is bound to create confusion as the most recent decision in a long-line of cases stands in opposition to almost all previous milestones.
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