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exceptions to murder

EXCEPTION 1 - GRAVE AND SUDDEN PROVOCATION

In Mancini v. Director of Public Prosecutions , Viscount Simon, L. C., states the scope of the doctrine of provocation thus:


"It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control as the result of which he commits the unlawful act which causes death......... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the text, it is of particular importance to

(a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."


Viscount Simon again in Holmes v. Director of Public Prosecutions elaborates further on this theme. There, the appellant had entertained some suspicions of his wife's conduct with regard to other men in the village. On a Saturday night there was a quarrel between them when she said, "Well, if it will ease your mind, I have been untrue to you", and she went on, "I know I have done wrong, but I have no proof that you haven't- at Mrs. X.'s". With this appellant lost his temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like to see her lie there and suffer, he just put both hands round her neck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simon, after referring to Mancini's case(2), proceeded to state thus :


"The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an actual intention to kill (such as Holmes admitted in the present case), or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies."



In K.M Nanavati vs State of Maharashtra (AIR1962 SC 605), and, on an analysis of the ratio, the Supreme Court evolved the following illustrative parameters:


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 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 pre-meditation and calculation.


In Boya Munigadu v. The Queen, reported in ILR (1881) 3 Mad 33, the Court upheld the plea of 'grave and sudden' provocation in the following circumstances: The accused saw the deceased, when she had cohabitation with his bitter enemy; that night he had no meals; next morning, he went to the rayots to get his wages from them and, at that time, he saw his wife eating food along with her paramour; he killed the paramour with a bill-hook.


It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of man who was already enraged by the conduct of deceased's son. The same learned Judge in a later decision in Boya Munigadu v. The Queen upheld plea of grave and sudden provocation in the following circumstances: The accused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went to the ryots to get his wages from them, and at that time he saw his wife eating food along with her paramour; he killed the paramour with a bill-hook. The learned Judges held that the accused had sufficient provocation to bring the case within the first exception to s. 300 of the Indian Penal Code. The learned Judges observed :


"............If having witnessed the act of adultery, he connected this subsequent conduct as he could not fail to connect it, with that act, it would be conduct of a character highly exasperating to him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned and that they purposed continuing their course of misconduct in his house. This, we think, amounted to provocation, grave enough and sudden enough to deprive him of his self- control, and reduced the offence from murder to culpable homicide not amounting to murder."


Chinnathaman v. State represented by Inspector of Police reported in (2007) 14 Supreme Court Cases 690, was a case where finding that there was no premeditation or pre-plan to cause death by the accused and in the background of the accused nurturing a feeling that the deceased and his sister's son had facilitated elopement of his niece and thereby defamed the family and that the deceased though younger to the accused had advised him to behave properly, it was held that the same would amount to grave and sudden provocation. On the additional facts that the medical opinion did not suggest that the injuries were sufficient in the ordinary nature to cause death and despite having sufficient opportunity to give further blows, accused had not done so and thus not acted in a cruel manner, the conviction was converted from that of section 302 to section 304 Part I of the IPC.


In case of Pundalik v. State of Maharashtra reported in (2010) 15 Supreme Court Cases 122, the Supreme Court converted the conviction from that under section 302 to section 304 Part I when it was found that even according to the prosecution there used to be frequent quarrels between the accused and his deceased wife. On the date of incident finding his wife in an inebriated condition, he got infuriated and in the heat of passion assaulted her.


It would be relevant to quote here the decision, in Jan Muhammad v. Emperor, ILR [1929] Lah 861, relied upon in Nanavati (supra), wherein the facts were that the wife was leading a notoriously immoral life and, on the previous night, she mysteriously disappeared from the bedside of her husband and when the husband protested against her conduct, she abused him, whereupon the husband lost his self-control, picked up a rough stick, which happened to be close by, and struck her by the stick resulting into her death. Lahore High Court, in Jan Muhammad (supra), had held that the case was governed by the First Exception to Section 300 IPC. The following observations, made in Jan Muhammad (supra), are of great relevance and, therefore, reproduced below:


"In the present case, my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment, when the blow, which ultimately proved to be fatal, was struck, that is to say, one must not take into consideration only the event, which took place immediately before the fatal blow was struck. We must take into consideration the previous conduct of the woman. As stated above, the whole unfortunate affair should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death."



A division bench of the Allahabad High Court in Emperor v. Balku invoked the exception in a case where the accused and the deceased, who was his wife's sister's husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot, and going to another room and having sexual intercourse with his (accused's) wife, and the accused allowed the deceased to return to the cot, but after the deceased fell asleep, he stabbed him to death. The learned Judges held :


"When Budhu (the deceased) came into intimate contact with the accused by lying beside him on the charpai this must have worked further on the mind of the accused and he must have reflected that `this man now lying beside me had been dishonouring me a few minutes ago'. Under these circumstances we think that the provocation would be both grave and sudden."


The Allahabad High Court in a recent decision, viz., Babu Lal v. State applied the exception to a case where the husband who saw his wife in a compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed :


"The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden provocation. The fact that he had suspected this illicit intimacy on an earlier occasion also will not alter the nature of the provocation and make it any the less sudden."

All the said four decisions dealt with a case of a husband killing his wife when his peace of mind had already been disturbed by an earlier discovery of the wife's infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind.




In Bonda Devesu v. State of A.P., (1996) 7 SCC 115, the prosecution case was that the deceased used to tell the wife of the appellant that he will carry her away and marry her. On 4-6-1989, at about 8 in the morning, the wife of the appellant had gone to fetch water from a water kundi. While the wife of the appellant was taking water, the deceased caught hold of her hand and asked her to come with him. Somehow, she got herself released and ran away to her house and informed the appellant about the incident. The appellant went to the deceased and gave an axe blow to the deceased which proved fatal. In these circumstances, Hon'ble Supreme Court held as under:-


" The prosecution had alleged participation by other persons also but they have been acquitted by the trial court. We are informed that the appellant is a tribal. The behaviour of the tribals, in situation in which the occurrence has taken place is well known. When prosecution case itself is that the deceased used to misbehave with the wife of the appellant and on the date of occurrence he was actually taking her away by catching hold of her hand, in the normal course it was bound to cause grave provocation to the appellant, because of which the offence was committed. In this background, the appellant cannot be convicted for an offence under Section 302. His case is covered under Exception I to Section 300 of the Penal Code. Accordingly, we set aside the conviction and sentence under Section 302 of the Penal Code and convict him under Section 304 Part I. So far as the sentence is concerned, we direct imprisonment for a period of seven years. The appeal is accordingly allowed to the extent indicated above."


In Devku Bhikha v. State of Gujarat (1996) 11 SCC 641 the deceased, Head Master of a school, had asked the accused to make his wife available for immoral purposes in return to give job to the accused in the school , as well as charged him of impotency and the accused killed the Head Master by inflicting repeated knife injuries. The Hon'ble Supreme Court accepted it as an offence punishable under Section 304 Part I, holding as under:


"3. 1 Thus, from this analysis it becomes abundantly clear that the appellant was driven to the crime which was not premeditated and the occasion had sprung up at the moment, gradually leading to the point when the appellant lost his self-control, and due to grave and sudden provocation, inflicted the injuries on the deceased, successively within seconds. We think, therefore, that the offence made out against the appellant is under Section 304 Part I IPC. Accordingly, the offence is scaled down from one punishable under Section 302 IPC to one under Section 304 Part I IPC for which we impose sentence of seven years' RI on the appellant."


In State of Punjab v. Jagtar Singh, (2011) 14 SCC 678, the accused persons had killed Gurnam Singh and their sister Paramjit Kaur by strangulation because Paramjit Kaur had sexual relations with Gurnam Singh. The High Court came to the conclusion that it was deceased Gurnam Singh who himself sneaked into the house of the accused persons and must have had sexual intercourse with Paramjit Kaur and on seeing them in a compromising position, the accused persons must have killed them. On this basis, the High Court came to the conclusion that even if this was proved, it was a case of grave and sudden provocation and as such it could not be a case of murder and would come under Section 304 Part I read with Section 34 IPC on the basis of the First Exception to Section 300 IPC. Therefore, the High Court converted the sentence of the accused from imprisonment for life to rigorous imprisonment for five years with a fine of Rs.1000/- each. The Hon'ble Supreme Court dismissed the special leave petition of the State of Punjab holding that the case was covered under Exception 1 of Section 300 IPC.



In State of U.P. v. Shyam Veer, (2005) 10 SCC 611, the accused had come to the place of occurrence on hearing about their brother's death. They had thereafter picked up the body of the deceased brother and kept it under a Neem tree. Then they set fire to the house of the deceased. It was not disputed that the second occurrence took place within 15 minutes of the first occurrence. The High Court had sentenced the accused to 10 years' rigorous imprisonment under Section 304 Part I IPC. The Hon'ble Supreme Court said that in the facts and circumstances it could not be said that the view taken by the High Court was not reasonable The Court observed:


"The incident seriously infuriated the family members of the deceased and resulted in deprivation of power of self-control. The time gap of only 15 minutes between the two incidents supports the case of the respondents that what they did was under grave provocation whilst deprived of their power of self-control on account of the murder of their brother by Indal. According to her the time gap of 15 minutes was not sufficient for the members of the family of Rajvir Singh to gain their self-control particularly, when they saw the dead body of their brother who was murdered by Indal. It must have taken some time for them to reach the house of Ghamandi Lal, and within no time thereafter the second occurrence took place.

6. Having regard to the facts and circumstances of the case, we are not in a position to say that the view taken by the High Court is not a possible reasonable view of the evidence on record. Respondents have been sentenced to 10 years' rigorous imprisonment under Section 304 Part I IPC and also to 7 years' rigorous imprisonment under Section 436 IPC apart from the sentence of two years under Section 147 IPC. The occurrence took place 16 years ago. We are, therefore, not inclined to interfere with the order of the High Court."


In Hansa Singh v. State of Punjab, (1976) 4 SCC 255, the occurrence took place while the deceased was committing sodomy on Haria and that gave such a sudden and grave provocation and annoyance to the appellant which impelled him to assault the deceased. The Hon'ble Supreme Court held that the case of the appellant falls clearly within the purview of Section 304 Part II of the Indian Penal Code. The appellant on seeing the deceased committing the act of sodomy on his son, lost his power and self-control and it was undoubtedly a grave and sudden provocation for him which led him to commit the murderous assault on the deceased.


In Ajit Singh v. State of Punjab, 1989 Supp (2) SCC 147, the appellant's plea before the Sessions Judge was that he had left the house on that morning to visit his sister but after going to some distance, he realised that he had not brought his money purse and hence he came back to the house. On reaching home, he found Gurbux Singh and his wife in a compromising position and acting under grave and sudden provocation he had fired the shots at his wife and Gurbux Singh. Though the Sessions Judge refused to give credence to the defence version, the High Court gave credence to it as the events pertaining to the occurrence gave a high degree of probability to the version. The Supreme Court held that the High Court was justified in holding that the appellant had acted only under grave and sudden provocation, when he fired the shots at Swarno and Gurbux Singh.


Punjab-Haryana High Court

Inderjit Singh @ Bantu vs State Of Punjab on 24 September, 2014


The deceased taking undue advantage of the mental condition of the wife of the accused had developed illicit sexual relations with him. He used to visit the house of the accused in his absence. The accused was in the know of this and had repeatedly warned him to desist from his activities, but without success. On the fateful day when the accused returned from school he found the deceased in the bed room with his wife. The deceased succeeded in running away by pushing away the accused. This caused extreme provocation to the accused, who immediately picked up his pistol, followed the deceased to his shop which was right opposite to his house and shot at him and ran away. Though, the accused had been forbearing earlier and had only limited himself to warning the deceased to desist from his evil ways, but having caught him . Insuch a position, the accused must have lost his self control and shot at the deceased. All this happened before the accused had regained his composure and self control. Thus, we are of the view that the Ld. Court below was not correct in holding that the case of the accused was not covered under Exception 1 to Section 300 IPC. The conviction of the appellant under Section 302 IPC is set aside. Instead, the appellant is convicted of offence under Section 304 Part I IPC and sentenced to undergo imprisonment for eight years and to pay fine of Rupees Ten Thousand. In case of default of payment of fine, the appellant shall undergo further rigourous imprisonment for six months.


Gujarat High Court

Rafik Yakubbhai Shaikh vs State Of Gujarat on 27 December, 2007

accused had committed the offence of murder and killed his real sister on the terrace of the house at Vithrang Society, Varia plot, Rajkot. The accused was also accused for murder of a minor child by knife blow and ultimately was acquitted. However, the family members of the accused were not happy regarding his involvement in such incident and they had to suffer inasmuch as they had to vacate the premises where they were living earlier because of such incident involving the accused in such a heinous crime. Therefore, on 23.5.1988 at about 6 O'clock in the evening when the accused visited the house situated at Vitrang Society, Rajkot, his deceased sister Salma is said to have stated that as he is murderer he should not enter the house and visit them and there was some quarrel. Thereafter, he stayed on that day at his house where the deceased sister Salma was sleeping on the terrace and the accused was also sleeping on the terrace whereas other members of the family were sleeping downstairs. The accused annoyed with the displeasure shown by the deceased sister Salma and the quarrel and also the attitude of the other family members, was angry and agitated and therefore committed murder of the his sister with a knife blow on vital part-cutting blood vessel and trachea, cavotid arteries on both sides are cut down, Hyoid bone raptured. Thereafter, when the other members of the family including father of the accused herein as well as his deceased sister Salma, hearing the shout of the deceased, reached the terrace and saw the accused with knife in his hand and the dead body of the deceased in pool of blood.


Held : -If the accused who was involved in a heinous crime though acquitted, subsequently had been asked not to visit the family and the family had not liked his visiting the house and in spite of that he not only visited the house, stayed there and when there is a quarrel between the accused and the deceased younger sister he has committed this crime again which again reflects his attitude. He cannot have any reason to kill the younger sister mercilessly at late night merely because she had a quarrel in the evening for a justifiable reason. Accused is rightly convicted for murder under section 302 . It was not a case of grave and sudden provocation .





Chetram v. union of India (1965) 1 Cr LJ 120 Where wife refused to cook the evening meals and threatened to leave the house and husband trying to appease her , she gave him a kick on the chest and said that he should have sexual intercourse with his sister rather than her . Husband in a state of fury picked up a stone lying nearby and hurled it at the head of the wife , inflicing fatal injury. It was deemed to falling in exception 1 of section 300.


Re Govindan v. State (1975 Cr LJ 481 ) - Accused found his wife in illicit cohabitation with his younger brother , there was an element of suddeness . Mere fact that the accused chased his wife for 45 yards and then killed her will not take away the benefit of Exception 1 of section 300.


(However it must be borne in mind that mere suspicion of unchastity would not amount grave and sudden provocation .) (Where during an altercation between wife and husband , wife states that she is in adulterous relationship behind the back of the husband for a long time , consequently the husband killed her in the moment of grave and sudden provocation . He would be covered under section 300 exception 1)


Imam Baksh v. Emporer AIR 1933 Pat 508

Where accused knew that his sister was suspected of an intimacy with another person and he left his house after picking up an axe and going to the house of his sister, broke into it inspite of protest and murdered both sister and her paramour . It was held that provocation might have been grave but it was not sudden . He was held liable for murder.


Bichi Munda v. state (1993 Cr LJ 145 Ori)

Where accused killed his mother for objecting to his illicit relationship with a certain woman. The benefit of section 300 exception 1 was denied.


Sheik Rafi vs State Of Andhra Pradesh & Anr on 24 April, 2007

During a family dispute on matter of partition accused chased the deceased and caused 19 stab injuries . Deceased was unarmed. Injuries was caused in cruel and unusual manner . He was held liable for murder.


Raj Kumar vs State Of Maharashtra on 15 July, 2009

Husband murdered the wife , because she refused to withdraw maintenance proceedings against him. Court held , it was her lawful right to institute maintenance proceeding and murdering her for refusal to withdraw such proceedings cannot be termed as grave and sudden provocation.



Murgi Munda v. Emporer (AIR 1939 Pat 443) Accused found deceased sleeping with his girl friend in the jungle . He attacked on the head of the deceased with slaps , kicks and a large stone . The court distinguished the wife's position with girlfriend , she was not even bethroted to the accused. benefit of grave and sudden provocation was denied .


In Jamaluddin v. state (AIR 1955 mad 1227) - it was held that defence of provocation may be taken by husband , son , brother provided that wife , mother or sister was under their protection.

But it cannot be extended to first and second cousin specially when they are not under their protection.


Allahabad High Court

Akhtar vs State on 11 November, 1963

particular situation and past experiences of an accused in relation to the deceased may be taken into account in considering the extent to which the accused had been repelled towards the breaking point which is there even in constitutionally normal or average individuals.

Secondly, we have to consider whether the accused acted normally or reasonably, according to the standards and norms applicable to his group, until he lost control over himself. If he himself acted improperly or unreasonably, so as to invite what is put forward as the provocation, he could not get the benefit of the doctrine.

Thirdly, it has to be shown that the act causing death was committed after loss of self-control but before self-possession has had an opportunity to return. This can often be presumed from the existence of a grave provocation and the sudden and drastic character of the violent and hasty act immediately following the provocation, but facts and circumstances may sometimes exist which destroy the presumption and show that self-possession was not actually lost so that the accused could not get the benefit of the doctrine.


Re narayana v. State (AIR 1962 A.P 166)

Calling for a fight cannot be termed as grave and sudden provocation when accused themselves had started the whole trouble and offered earlier provocation by collecting the opponent and calling them for a fight.


Madras High Court

Ayyanar vs State Of Tamilnadu on 6 July, 2005

"grave provocation" and "sustained provocation", a Division Bench of Madras High Court has rendered a decision in Suyambukkani v. State (1989 L.W.(Crl.86), holding that though there is a difference between provocation as defined under Exception 1 and sustained provocation, the ingredient of sustained provocation is a series of acts more or less grave spread over a certain period of time, the last of which acting as the last straw breaking the camel's back may even be a very trifling one and, as such, the sustained provocation also is an addition to the ingredient of grave and sudden provocation, contemplated under Exception 1 to Section 300 I.P.C.Admittedly, the word 'sustained provocation' is not available in Exception 1 to Section 300 I.P.C. With these decisions, attempts have been made to bring sustained provocation under Exception 1 to Section 300 I.P.C.


There is a cardinal difference between provocation as defined under Exception 1 to Section 300 and sustained provocation. The only word which is common is 'provocation'. What Exception 1 contemplates is, a grave and sudden provocation, whereas the ingredient of sustained provocation is a series of acts more or less grave spread over a certain period of time, the last of which acting as the last straw breaking the camel's back. The last incident may even be a trifling one. Therefore, while considering whether there are materials to indicate that there is a grave and sudden provocation as contemplated under Exception 1 to Section 300 I.P.C., the sustained provocation, on account of a series of acts more or less grave spread over a certain period of time, would be undoubtedly considered as an addition to Exception 1 to Section 300 I.P.C.


38. While considering Exception 1 to Section 300 I.P.C., the Courts have to analyse the materials in order to find out whether the provocation was sudden and grave. It means, if the provocation is not grave or not more serious in nature, it will not come under Exception 1 to Section 300 I.P.C. But, for this proposition, there is some exception with reference to the applicability of sustained provocation. In other words, if the accused has been nurturing ill-will for a long period because of the conduct of the deceased, even in the long period, due to the series of acts, the last act which provoked the accused to attack the deceased on the spur of the moment might be a trifling one. Also, while considering the exception in relation to sudden and grave provocation, the Court has to consider not only the last incident, which is a trifling one, but also the series of incidents which took place earlier, due to which the accused was nurturing ill-will against the deceased.



EXCEPTION 2: EXCEEDING THE RIGHT OF PRIVATE DEFENCE :

Illustration : A thief enters B's house and opens his safe . B raises an alarm and the thief retreats. While thief is still in house B fires at him and kills him . B could have caused any other harm other than death , here he exceeded his right to private defence.


Supreme Court of India

Trilok Singh vs State (Delhi Administration) on 31 January, 1992

accused and the deceased were quarrelling and he went to the house and apprehend some danger would be caused to him. Deceased had a criminal record It is but natural for the accused to apprehend that there was every likelihood of causing some hurt to him. In such a situation even if it is alleged by the prosecution that the accused went and came back with a knife and inflicted injury, even then it cannot be said that he did not act in exercise of the right of private defence. In the circumstances when the deceased and another person (P.W.) came together aggressively against him, it was but natural to the accused to apprehend that they would definitely cause some hurt to him. Therefore, we are satisfied that the accused inflicted injury in exercise of his right of self-defence. But the question is whether he could go to the extent of causing the death. No doubt in a situation like this it cannot be expected that the accused has to modulate his right of self-defence. But when he went to his house and brought a knife and caused the death it cannot be said that he did not exceed the right of private defence. We cannot give the benefit to the appellant Under Section 100, I.P.C. and the act committed by him only attracts exception to Section 300, I.P.C. Therefore the offence committed by him could be one under Section 304, Part I, I.P.C.




The Munney Khan v. State of Madhya Pradesh (1970) 2 SCC 480, this court for exceeding the right of private defence converted the sentence of the accused appellant from under section 302 IPC to section 304 IPC. The relevant portion of the judgment reads as under:-


Such a right of private defence is governed by Section 101, I.P.C. and is subject to two limitations. One is that, in exercise of this right of private defence, any kind of hurt can be caused, but not death; and the other is that the use of force does not exceed the minimum required to save the person in whose defence the force is used. In these circumstances, in the present case, when Zulfiquar was being given fist blows only, there could be no justification at all for the appellant to stab Reotisingh with a knife and particularly to give him a blow which could prove fatal by aiming it on his back. The use of the knife itself was in excess of the right of private defence and it became much more excessive when the blow with the knife was given on a vital part of the body which, in the ordinary course of nature, was likely to cause the death of Reotisingh. From the fact that the blow was given in the back with a knife an inference follows that the appellant intended to cause death or at least intended to cause such injury as would, in the ordinary course of nature, result in his death. In adopting this course, the appellant would have been clearly guilty of the offence of murder had there been no right of private defence of Zulfiquar at all. Since such a right did exist, the case would fall under the exception under which culpable homicide does not amount to murder on the ground that the death was caused in exercise of right of private defence, but by exceeding that right. An offence of this nature is made punishable under the first part of Section 304, I.P.C. Consequently, the conviction of the appellant must be under that provision and not under Section 302 I.P.C.


In Mahabir Choudhary v. State of Bihar (1996) 5 SCC 107, this court held that the High Court erred in holding that the appellants had no right of private defence at any stage. However, this court upheld the judgment of the Sessions Court holding that since the appellants had right of private defence to protect their property, but in the circumstances of the case, the appellants had exceeded their right of private defence and were, therefore, rightly convicted by the trial court under section 304 Part-I. The court observed that the right of private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right of private defence including killing.


In Balmukund & Another v. State of Madhya Pradesh (1981) 4 SCC 432 this court while dealing with the facts of similar nature converted the conviction from section 302 IPC to section 304 IPC. Relevant observations of the court reads as under:-


In rural landscape even today dispute as to possession of agricultural land is a part of life. Occupancy of land being the only source of survival, emotional attachment apart, the struggle for survival leads to fierce fight and resort to arms to protect possession because in the context of tardy slow moving litigative process actual possession has ceased to be mere nine point in law but it has assumed alarming proportions. Years upon years spent in legal conundrums moving vertically through hierarchy of courts coupled with the cost and time to throw out a trespasser or even a rank trespasser provides occasionally provocation to resort to physical violence. The use of the firearm used to be spasmodic but it has started becoming a recurring malady. But right of private defence cannot be judged step by step or in golden scales. Once we accept the finding of the High Court that the appellants had the right of private defence of person and property meaning thereby that the appellants were the victims and the complainants were aggressors, but in the facts of the case they exceeded the same by wielding a firearm, a sentence of 10 years rigorous imprisonment would appear to us in the facts and circumstances of the case to be a little bit too harsh.


In Mohammad Khan & Others v. State of Madhya Pradesh (1971) 3 SCC 683 in para 11, this court has rightly concluded that the right of self-defence only arises if the apprehension is unexpected and one is taken unawares. If one enters into an inevitable danger with the fullest intimation beforehand and goes there armed to fight out, the right cannot be claimed.


Preetam Singh v. State of Rajasthan (2003) 12 SCC 594. In this case, the Court clearly held that the appellants were the aggressors, therefore, the question of the appellants having the right of private defence or exceeding it does not arise. The plea of private defence is not at all available to the appellants.


Bishna alias Bhiswasdeb Mahato & Others v. State of West Bengal (2005) 12 SCC 657 exhaustively dealt with this aspect of the matter. The facts of this case are akin to the facts of the instant cases. In this case, the Court while relying on the earlier judgments of this Court, clearly came to the conclusion that the right of private defence cannot be claimed when the accused is an aggressor.

Only such members of assembly who shared a common object to exceed the right are liable , not all of them :-

The Hon'ble Supreme Court in similar circumstances in Kashi Ram v. State of M.P. convicted one accused Ramesh under Section 304-II, I.P.C. and acquitted other accused-persons. Therein their Lordships held that so long an assembly of persons as acting in exercise of the right of private defence it cannot be an unlawful assembly. An assembly though lawful to begin with may in the course of events become unlawful. So long as the accused persons were acting in exercise of right of private defence, there object was not unlawful and so there was no unlawful assembly but once they exceeded the right, the assembly ceased to be lawful and became an unlawful assembly. There too only such of the members of the assembly who shared the object of doing anything in excess of the exercise of right of private defence, alone would be liable to be punished for the acts committed in prosecution of the common object or for their individual unlawful acts.


The Division Bench of Rajasthan High Court in Pehalwan and Ors. v. The State of Rajasthan 1977 (2) R Cr C 173 held that it should be remembered that in case the right of private defence has been exceeded it is only that accused who has exceeded that right can be held guilty and not the other accused. Once the right of private defence has been held to be established and the only criticism is that it has been exceeded then each individual accused can only be liable for the specific act and the applicability of Sections 34 and 149 cannot be invoked by the prosecution.


The Hon'ble Supreme Court in Vajrapu Sambayya Naidu and Ors. v. State of A.P. and Ors. held that it is well settled that in a case where the Court comes to the conclusion that the members of the defence party exceeded the right of private defence, the Court must identify and punish only those who have exceeded the right. Section 34/149, I.P.C. will not be applicable in the case of persons exercising their right of private defence.



Exception 3 :

Supreme Court of India

Satyavir Singh Rathi vs State Tr.C.B.I on 2 May, 2011


This Exception pre-supposes that a public servant who causes death, must do so in good faith and in due discharge of his duty as a public servant and without ill-will towards the person whose death is caused. the obligation to prove an exception is on the preponderance of probabilities but it nevertheless lies on the defence.


Exception 4:-


In In Sridhar Bhuyan v. State of Orissa; (2004) 11 SCC 395 , this Court held as under :


"7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.


8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1.


There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.


The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".



To invoke this Exception four requirements must be satisfied, namely,


(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv)The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly.


in the case of Arumugam Vs. State; 2009 (1) JIC 894 (SC) in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under:-


"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage' as used in the provision means ''unfair advantage.


Further in the case of Satish Narayan Sawant Vs. State of Goa; 2010 (1) JIC 97 this Court has held as under:


"24. .......Section 300 IPC further provides for the Exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II.


In In Sridhar Bhuyan v. State of Orissa; (2004) 11 SCC 395 , this Court held as under :


"7. For bringing in operation of Exception 4 to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.



Pappu v. State of M.P. AIR 2006 SC 2659 in which it has been held as follows: "13. ... The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case."



Supreme Court of India

Ghapoo Yadav & Ors vs State Of M.P on 17 February, 2003

The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception


There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.


Supreme Court of India

Kesar Singh & Anr vs State Of Haryana on 29 April, 2008


The word "fight" is used to convey something more than a verbal quarrel. It postulates a bilateral transaction in which blows are exchanged. In order to constitute a fight, it is necessary that blows should be exchanged even if they all do not find their target. [Ratanlal and Dhirajlal, Vol 2, page 1364, Footnote 4]


Supreme Court of India

Shaukat vs State Of Uttaranchal on 22 April, 2010

The facts of the instant case establish beyond pale of doubt that there was premeditation between the appellant and his father to cause the death of the deceased and to execute the threat given by accused Sabbir to the deceased near the mosque at about 5.30 in the morning. Thus, both of them had followed the deceased who had gone to the pond for the purpose of digging the earth and ultimately the appellant had murdered him. Further, the appellant had carried with him lethal weapon like knife while following the deceased. The record would show that the father of the appellant had asked the deceased to stop digging the earth but the deceased had continued to dig the earth because the pond was meant for the benefit of all the villagers including the deceased and thereupon a scuffle had ensued between the father of the appellant and the deceased. The evidence does not indicate at all that any scuffle had taken place between the appellant and the deceased. It is also established that the father of the appellant had asked the appellant not to look at the scuffle as a passive spectator and kill the deceased and thereupon the appellant had first of all given blow with knife on the back of the deceased and thereafter on the chest of the deceased. If the intention of the appellant had not been to murder the deceased, the appellant would not have inflicted second blow with knife with such a great force on vital part of the body of the deceased which resulted into puncture of heart and fracture of rib and ultimately into death of the deceased within no time. This cannot be said to be a sudden quarrel within the meaning of Exception IV to Section 300 IPC at all. Further, the appellant had taken advantage of the situation in the sense that after inflicting one blow on the back of the deceased, he was not contented and had caused another fatal injury on the chest as well and also caused as many as six injuries to injured Rahmat who had made attempt to save his brother. There is nothing on the record of the case even to remotely suggest that a sudden fight had taken place between the appellant and the deceased. Premeditation to cause death of the deceased stands proved by reliable evidence adduced by the prosecution. Nothing is brought on record of the case to show that the act of mounting fatal attack on the deceased was done by the appellant in a heat of passion. The evidence adduced positively proves that the appellant had taken undue advantage while delivering fatal blow to the deceased. Conviction under section 302 is appropriate in the present case.



In Pandurang Narayan Jawalekar v. State of maharashtra [1979] 1 SCC 132, the facts proved were that the appellant gave a blow on the head of the deceased old man who was advising him not to quarrel. The injury caused to the brain from one end to the other resulted in fracture as could appear from the evidence of the doctor. It would show that the accused must have struck the blow on the head of the deceased with an iron bar with very great force. Accordingly it was held that exception 4 does not apply though there was sudden quarrel and that the fight was not premeditated to cause death. It must be shown that the injury caused is not cruel one. The conviction for offence under s. 302 by the High Court reversing the acquittal by trial court was upheld.


Suresh Kumar v. State of Haryana (2008 II cr. LJ 2247)

For application of this exception 4 of section 300 , it has to be shown that there was a sudden fight , which was without premeditation and also that the accused did not act in a cruel or inhuman manner or obtained an undue advantage . When its shown that offender took undue advantage , the benefit of exception 4 cannot be given . In order to determined this the weapon used , the manner of attack along with surrounding circumstances are relevant.


Ashok Balu v. State of Maharashtra (AIR 1995 SC 944)

A quarrel took place between two brothers. Then they were separated . The deceased brother started repairing the bicycle , the accused suddenly came out of the house and stabbed the deceased first on the back then on the chest. It was held that quarrel was not serious and that accused acted in a cruel and unfair manner , benefit of exception 4 in these circumstances is denied.



In Chamru Budhwa v. State of Madhya Pradesh in somewhat similar circumstances, where there was exchange of abuses between the two parties both of whom were armed with lathis, they came to blows and in the course of the fight that ensued, the accused struck a lathi blow on the head of the deceased which caused a fracture of the skull resulting in the death. In view of the fact the accused had given only one blow in the heat of the moment, it was held that all that can be said was that he had given the blow with the knowledge that it was likely to cause death and, therefore, the offence fell under s. 304, Part II of the Code.


In Willie (Williams) Slaney v. State of Madhya Pradesh there was, as here, a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey-stick had been given on the head. The court held that the offence amounted to culpable homicide not amounting to murder punishable under s. 304, Part II.


Harjinder Singh (alias Jinda) v. Delhi Admn.

there was a sudden commotion when the accused took out a knife and stabbed the deceased who intervened in a fight. At this stage, the deceased was in a crouching position presumably to intervene and separate the two persons fighting. It could not, therefore, be said with any definiteness that the accused aimed a blow at a particular part of the thigh that it would cut the femoral artery which would result in the death of the deceased.



Supreme Court of India

Vijender Kumar @ Vijay vs State Of Delhi on 28 April, 2010

Yogesh, the deceased was employed as a Helper in a bus owned by the appellant's father. He was suspected of misappropriating a part of the fare that was being collected by him from passengers. On the 9th of April, 2002, when the bus was parked at the Karampura bus terminal, Delhi, the appellant questioned the deceased to find out if a part of the fare had been withheld by him, but the deceased answered in the negative. The appellant, however, remained unconvinced. He, therefore, subjected the deceased to a personal search which resulted in the recovery of an amount of Rs.100/- from his person. The appellant got furious and started beating the deceased. The deceased protested whereupon the appellant brought a knife from the boot of his scooter parked nearby and caused one injury with the knife in the abdomen of the deceased. The injury later proved fatal .


Supreme Court held : "Admittedly there was no pre-meditation in the incident. The second requirement of a sudden fight is however missing. The facts show that there was no sudden quarrel and it was a unilateral act on the part of the appellant as he lost his temper as he suspected the deceased of having misappropriated the fare that he had been collecting. The deceased also had no role to play. We also see that the appellant had taken undue advantage of his position inasmuch as that he had run to the scooter opened the boot, taken out a knife and caused one injury on the person of the deceased who was a young, unarmed boy. It was, therefore, also a clear case where the appellant had taken undue advantage of his position. It is also well settled that the number of injuries caused in such a case is not conclusive in determining the nature of the offence, but what has to be primarily seen are the circumstances preceding the incident and not exclusively during the incident. We are, therefore, of the opinion that the case of the appellant cannot fall within Exception 4."


Supreme Court of India

Jagrup Singh vs State Of Haryana (1981 AIR 1552)

Accused and deceased were relatives (collaterals) , on the day of occurrence the deceased was attending the marriage of his late brother's daughter . Accused had a grievance that he was not invited . After the marriage , accused and his brothers emerged suddenly while being armed with gandhala there was a sudden quarrel between both the accused and deceased. When passions rose high , the accused attacked deceased with the blunt side of the weapon on his head.

Doctor opined that injury was sufficient in ordinary course of nature to cause death.


Supreme court held : "In our judgment, the High Court having held that it was more probable that the appellant Jagrup Singh had also attended the marriage as the collateral, but something happened on the spur of the moment which resulted in the infliction of the injury by Jagrup Singh on the person of the deceased Chanan Singh which resulted in his death, manifestly erred in applying Clause Thirdly of s. 300 of the Code. On the finding that the appellant when he struck the deceased with the blunt side of the gandhala in the heat of the moment, without pre-meditation and in a sudden fight, the case was covered by Exception 4 to s. 300. It is not suggested that the appellant had taken undue advantage of the situation or had acted in a cruel or unusual manner. Thus, all the requirements of Exception 4 are clearly met. That being so, the conviction of the appellant Jagrup Singh, under s. 302 of the Code cannot be sustained.


The result, therefore, is that the conviction of the appellant under s. 302 is altered to one under s. 304, Part II of the Indian Penal Code."



Exception 5 : In re Ambalathi Assinar (1955) 2 M.L.J IN this case wife refused to go back to her parental home and alleged , that if he should insist then he'd rather kill her. Husband killed her and took the defence of exception 5 of section 300. High court held that consent given was not such consent as envisaged by this provision . Husband was guilty of murder. Consent under exception 5 should be unconditional , without any reservations. It should be unequivocal consent and should not involve choice of alternatives.

Patna High Court

Dasrath Paswan vs State Of Bihar on 14 November, 1957

The prosecution case is that the appellant, a resident of village Etwarpur Pakri, was a student of class X. His academic record in school was unsatisfactory. He had failed at the annual examination for 3 years in succession. The deceased, his wife, was aged about 19 years. It appears that she was a literate woman. The appellant was very much upset at these failures. He took his last failure so much to heart that he left home and remained away from the village for about a week prior to the occurrence On return home after a week he told his wife that he had decided to end his life.


His wife told him in reply that he should first kill her and then kill himself. This talk took place at about 8 a.m. on 13-6-55. That morning the parents of the appellant had gone out early in the morning to work in the fields and there was nobody else in the house besides the appellant and his wife. In accordance with the pact, about an hour later, the wife spread a mat on the floor in one of the rooms in the house and lay down quietly. The appellant at first struck her with a bhala causing a minor injury on her chest. Then he took up a sharp-cutting hasuli and gave her three violent blows on the neck killing her on the spot.


He then ran out of the house with his bloodstained clothes in order to end his own life , he was later caught by villagers .



High Court held :"It is undisputed that the deceased was above the age of 18 years and that she had suffered death with her own consent. The learned Additional Standing Counsel, however, contended that the consent in the present case was obtained by putting pressure upon her. This pressure, learned counsel explained, was the communication by the appellant to his wife that he had decided to end his own life. It was argued that it was the prospect of widowhood and all that it meant Which prompted the unfortunate woman to agree to suffer death at the hand of her husband. In my opinion the contention of the learned Additional Standing Counsel cannot be accepted. Section 90 of the Indian Penal Code lays down as follows :


"A consent is not such a consent as is intended by any section of this Code, if the consent is given by a Person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception....."


It cannot be reasonably urged in the present case that the deceased gave the consent under fear of injury or under, a misconception of fact. I am, therefore, of the view that the defence contention is well-founded. I, therefore, alter the conviction of the appellant to the first part of section 304 of the Indian Penal Code.


Having regard to the extraordinary nature of this case the question arises what sentence should be imposed upon the appellant. Without attempting to minimise the gravity of the offence I feel that there are circumstances in this case which should go into the scales in favour of a moderate sentence. The appellant, an immature youngman, was suffering from inferiority complex, the central idea of which was disbelief in himself. His morbid mind was equalled only by the sentimentalism of his young wife. The loss of a devoted wife has already been a great punishment to him. I, therefore, take a, lenient view of the case and sentence the appellant to 5 years' rigorous imprisonment. Subject to this modifiation the appeal is dismissed."


Ujagar Singh v. Emporer AIR 1918 lah 145

Accused killed his step father with his consent . Step father was an infirm old man , motive of granting such consent was to implicate the enemies with murder . It was held that case was covered by 5th exception .


Fattemah v. Emporer (1869 12 WCR (Cr) 7) A snake charmer professed that he was able to cure from snake bites and by so professing persuaded one of his audience to consent to be bitten by a snake , on belief that he would be able to cure him. It was held that consent was vitiated as it was given on a misconception of fact based on misrepresentation of accused . Accused was held liable for murder.



A point as to living wills and right to die (students may couple it with the section 309 , it has some relevance to exception 5 in rare cases but not expressly)



Common Cause (A Registered Society) v. Union of India

In a landmark Judgment the Five Judge Constitution Bench of the Supreme Court of India has held that the right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity.

"With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty"

Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination. In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.

When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest".




WHAT IS LIVING WILL

Living will is a written document that allows a patient to give explicit instructions in advance about the medical treatment to be administered when he or she is terminally ill or no longer able to express informed consent.

It includes authorizing their families to switch off life support in case a medical board declared that they were beyond medical help.


here is no legal framework in our country as regards the Advance Medical Directive but we are obliged to protect the right of the citizens as enshrined under Article 21 of the Constitution. It is our constitutional obligation”.


“In our considered opinion, Advance Medical Directive would serve as a fruitful means to facilitate the fructification of the sacrosanct right to life with dignity. The said directive, we think, will dispel many a doubt at the relevant time of need during the course of treatment of the patient. That apart, it will strengthen the mind of the treating doctors as they will be in a position to ensure, after being satisfied, that they are acting in a lawful manner. We may hasten to add that Advance Medical Directive cannot operate in abstraction. There has to be safeguards. They need to be spelt out. We enumerate them as follows:-


THE MECHANISM


(a) Who can execute the Advance Directive and how?


(i) The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.


(ii) It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.


(iii) It should have characteristics of an informed consent given without any undue influence or constraint.


(iv) It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity


(b) What should it contain?


(i) It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.


(ii) It should be in specific terms and the instructions must be absolutely clear and unambiguous.


(iii) It should mention that the executor may revoke the instructions/authority at any time.


(iv) It should disclose that the executor has understood the consequences of executing such a document.


(v) It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorized to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.


(vi) In the event that there is more than one valid Advance Directive, none of which have been revoked, the most recently signed Advance Directive will be considered as the last expression of the patient‘s wishes and will be given effect to.


(c) How should it be recorded and preserved?


(i) The document should be signed by the executor in the presence of two attesting witnesses, preferably independent, and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.


(ii) The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.


(iii) The JMFC shall preserve one copy of the document in his office, in addition to keeping it in digital format.


(iv) The JMFC shall forward one copy of the document to the Registry of the jurisdictional District Court for being preserved. Additionally, the Registry of the District Judge shall retain the document in digital format.


(v) The JMFC shall cause to inform the immediate family members of the executor, if not present at the time of execution, and make them aware about the execution of the document.


(vi) A copy shall be handed over to the competent officer of the local Government or the Municipal Corporation or Municipality or Panchayat, as the case may be. The aforesaid authorities shall nominate a competent official in that regard who shall be the custodian of the said document.


(vii) The JMFC shall cause to handover copy of the Advance Directive to the family physician, if any.


(d) When and by whom can it be given effect to?


(i) In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness and authenticity thereof from the jurisdictional JMFC before acting upon the same.


(ii) The instructions in the document must be given due weight by the doctors. However, it should be given effect to only after being fully satisfied that the executor is terminally ill and is undergoing prolonged treatment or is surviving on life support and that the illness of the executor is incurable or there is no hope of him/her being cured.


(iii) If the physician treating the patient (executor of the document) is satisfied that the instructions given in the document need to be acted upon, he shall inform the executor or his guardian / close relative, as the case may be, about the nature of illness, the availability of medical care and consequences of alternative forms of treatment and the consequences of remaining untreated. He must also ensure that he believes on reasonable grounds that the person in question understands the information provided, has 176 cogitated over the options and has come to a firm view that the option of withdrawal or refusal of medical treatment is the best choice.


(iv) The physician/hospital where the executor has been admitted for medical treatment shall then constitute a Medical Board consisting of the Head of the treating Department and at least three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years who, in turn, shall visit the patient in the presence of his guardian/close relative and form an opinion whether to certify or not to certify carrying out the instructions of withdrawal or refusal of further medical treatment. This decision shall be regarded as a preliminary opinion. 177


(v) In the event the Hospital Medical Board certifies that the instructions contained in the Advance Directive ought to be carried out, the physician/hospital shall forthwith inform the jurisdictional Collector about the proposal. The jurisdictional Collector shall then immediately constitute a Medical Board comprising the Chief District Medical Officer of the concerned district as the Chairman and three expert doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years (who were not members of the previous Medical Board of the hospital). They shall jointly visit the hospital where the patient is admitted and if they concur with the initial decision of the Medical Board of the hospital, 178 they may endorse the certificate to carry out the instructions given in the Advance Directive.


(vi) The Board constituted by the Collector must beforehand ascertain the wishes of the executor if he is in a position to communicate and is capable of understanding the consequences of withdrawal of medical treatment. In the event the executor is incapable of taking decision or develops impaired decision making capacity, then the consent of the guardian nominated by the executor in the Advance Directive should be obtained regarding refusal or withdrawal of medical treatment to the executor to the extent of and consistent with the clear instructions given in the Advance Directive.


(vii) The Chairman of the Medical Board nominated by the Collector, that is, the Chief District Medical Officer, shall convey the decision of the Board to the jurisdictional JMFC before giving 179 effect to the decision to withdraw the medical treatment administered to the executor. The JMFC shall visit the patient at the earliest and, after examining all aspects, authorise the implementation of the decision of the Board.


(viii) It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.


(e) What if permission is refused by the Medical Board?


(i) If permission to withdraw medical treatment is refused by the Medical Board, it would be open to the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff to approach the High Court by way of writ petition under Article 226 of the Constitution. If such application is filed before the High Court, the Chief Justice of the said High Court shall constitute a Division Bench to decide upon grant of approval or to refuse the 180 same. The High Court will be free to constitute an independent Committee consisting of three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years.


(ii) The High Court shall hear the application expeditiously after affording opportunity to the State counsel. It would be open to the High Court to constitute Medical Board in terms of its order to examine the patient and submit report about the feasibility of acting upon the instructions contained in the Advance Directive.


(iii) Needless to say that the High Court shall render its decision at the earliest as such matters cannot brook any delay and it shall ascribe reasons specifically keeping in mind the principles of "best interests of the patient".


(f) Revocation or in-applicability of Advance Directive


(i) An individual may withdraw or alter the Advance Directive at any time when he/she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.


(ii) An Advance Directive shall not be applicable to the treatment in question if there are reasonable grounds for believing that circumstances exist which the person making the directive did not anticipate at the time of the Advance Directive and which would have affected his decision had he anticipated them.


(iii) If the Advance Directive is not clear and ambiguous, the concerned Medical Boards shall not give effect to the same and, in that event, the 182 guidelines meant for patients without Advance Directive shall be made applicable.


(iv) Where the Hospital Medical Board takes a decision not to follow an Advance Directive while treating a person, then it shall make an application to the Medical Board constituted by the Collector for consideration and appropriate direction on the Advance Directive.


In cases where there is no Advance Directive, the procedure and safeguards are to be same as applied to cases where Advance Directives are in existence and in addition there to, the following procedure shall be followed:-


(i) In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board in the manner indicated earlier. The Hospital Medical Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient and if they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.


(ii) In the event the Hospital Medical Board certifies the option of withdrawal or refusal of further medical treatment, the hospital shall immediately inform the jurisdictional Collector. The jurisdictional Collector shall then constitute a Medical Board comprising the Chief District Medical Officer as the Chairman and three experts from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years. The Medical Board constituted by the Collector shall visit the hospital for physical examination of the patient and, after studying the medical papers, may concur with the opinion of the Hospital Medical Board. In that event, intimation shall be given by the Chairman of the Collector nominated Medical Board to the JMFC and the family members of the patient.


(iii) The JMFC shall visit the patient at the earliest and verify the medical reports, examine the condition of the patient, discuss with the family members of the patient and, if satisfied in all respects, may endorse the decision of the Collector nominated Medical Board to withdraw or refuse further medical treatment to the terminally ill patient.


(iv) There may be cases where the Board may not take a decision to the effect of withdrawing medical treatment of the patient on the Collector nominated Medical Board may 185 not concur with the opinion of the hospital Medical Board. In such a situation, the nominee of the patient or the family member or the treating doctor or the hospital staff can seek permission from the High Court to withdraw life support by way of writ petition under Article 226 of the Constitution in which case the Chief Justice of the said High Court shall constitute a Division Bench which shall decide to grant approval or not. The High Court may constitute an independent Committee to depute three doctors from the fields of general medicine, cardiology, neurology, nephrology, psychiatry or oncology with experience in critical care and with overall standing in the medical profession of at least twenty years after consulting the competent medical practitioners. It shall also afford an opportunity to the State counsel. The High Court in such cases shall render its decision at the earliest since such matters cannot brook any delay. Needless to say, the High Court shall ascribe reasons specifically keeping in mind the principle of "best interests of the patient"..


“It is appropriate to cover a vital aspect to the effect the life support is withdrawn, the same shall also be intimated by the Magistrate to the High Court. It shall be kept in a digital format by the Registry of the High Court apart from keeping the hard copy which shall be destroyed after the expiry of three years from the death of the patient.


Our directions with regard to the Advance Directives and the safeguards as mentioned hereinabove shall remain in force till the Parliament makes legislation on this subject” said the court.



Justice Misra also laid down the procedure for execution of an Advance Directive, and provided guidelines for passive euthanasia, both in the presence and absence of such directive. The two Judges then summarized the findings of the Court as follows:


"(i) A careful and precise perusal of the judgment in Gian Kaur (supra) case reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.


(ii) The Constitution Bench in Gian Kaur (supra) has not approved the decision in Airedale (supra) inasmuch as the Court has only made a brief reference to the Airedale case.


(iii) It is not the ratio of Gian Kaur (supra) that passive euthanasia can be introduced only by legislation.


(iv) The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.


(v) There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to the withdrawal of life support measures or withholding of medical treatment meant for artificially prolonging life.


(vi) In active euthanasia, a specific overt act is done to end the patient‘s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient's life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.


(vii) Post Aruna Shanbaug (supra), the 241st report of the Law Commission of India on Passive Euthanasia has also recognized passive euthanasia, but no law has been enacted.


(viii) An inquiry into common law jurisdictions reveals that all adults with capacity to consent have the right of self- determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The 'Emergency Principle' or the 'Principle of Necessity' has to be given effect to only when it is not practicable to obtain the patient's consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.


(ix) Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as a component of right to life and liberty.


(x) It has to be stated without any trace of doubt that the right to live with dignity also includes the smoothening of the process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery.


(xi) A failure to legally recognize advance medical directives may amount to non-facilitation of the right to smoothen the dying process and the right to live with dignity. Further, a study of the position in other jurisdictions shows that Advance Directives have gained lawful recognition in several jurisdictions by way of legislation and in certain countries through judicial pronouncements.


(xii) Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.


(xiii) In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.


(xiv) When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest."


Justice Sikri's opinion


Justice Sikri agreed with the opinion authored by CJI Misra and ruled, "Having regard to the aforesaid right of the patients in common law, coupled with the dignity and privacy rights, it can be said that passive euthanasia, under those circumstances where patient is in PVS and he is terminally ill, where the condition is irreversible or where he is brain dead, can be permitted. On the aforesaid reasoning, I am in agreement with the opinion of the other members of this Bench in approving the judgment in Aruna Ramachandra Shanbaug."


He further observed that while it is a doctor's primary duty to provide treatment and save lives, it is not so "in the case when a person has already expressed his desire of not being subjected to any kind of treatment". He opined that it is a common law right of people of any civilized country to refuse unwanted medical treatment.


With regard to the Advance Directives, Justice Sikri cautioned that the system may be open to abuse, and observed, "At this juncture, we may again reiterate that on the one hand autonomy of an individual gives him right to choose his destiny and, therefore, he may decide beforehand, in the form of advance directive, at what stage of his physical condition he would not like to have medical treatment, and on the other hand, there are dangers of misuse thereof as well."


He ended his opinion with hope that the Legislature would step in at the earliest and enact a comprehensive law on ‘living will/advance directive’, in order to take care of the apprehensions expressed against euthanasia.


Justice Chandrachud's opinion


Justice Chandrachud wrote extensively on death, dignity, privacy, sanctity of life and the nuances involved in the "sanctity of life principle". Here are his thoughts on a few of these issues:




On sanctity of life: "The sanctity of human life is the arterial vein which animates the values, spirit and cellular structure of the Constitution. The Constitution recognizes the value of life as its indestructible component. The survival of the sanctity principle is founded upon the guarantees of dignity, autonomy and liberty."


On living a dignified life: "The right to a dignified existence, the liberty to make decisions and choices and the autonomy of the individual are central to the quest to live a meaningful life. Liberty, dignity and autonomy are essential to the pursuit of happiness and to find meaning in human existence."


On the right to refuse medical treatment: "The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compels an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity."


On Advance Directives: "An individual who is in a sound and competent state of mind is entitled by means of an advance directive in writing, to specify the nature of medical intervention which may not be adopted in future, should he or she cease to possess the mental ability to decide. Such an advance directive is entitled to deference by the treating doctor. The treating doctor who, in a good faith exercise of professional medical judgment abides by an advance directive is protected against the burden of criminal liability."


On protection of doctors who withdraw treatment: "The decision by a treating doctor to withhold or withdraw medical intervention in the case of a patient in the terminal stage of illness or in a persistently vegetative state or the like where artificial intervention will merely prolong the suffering and agony of the patient is protected by the law. Where the doctor has acted in such a case in the best interest of the patient and in bona fide discharge of the duty of care, the law will protect the reasonable exercise of a professional decision."



Further, he agreed with the conclusions drawn by the other Judges on Gian Kaur and Aruna Shanbaug's cases.


Justice Ashok Bhushan's Opinion


In a separate concurring opinion, Justice Bhushan also contemplated on the concept of life and death, the relevant statutory provisions on the subject, and the legal position in other jurisdictions.


He then agreed with the three-Judge Bench that the Constitution Bench in Gian Kaur's case had not expressed any binding view on euthanasia. He further noted that the Court had, in Aruna Shanbaug's case ruled that it is the Court alone with is entitled to take decision on whether treatment for a terminally ill patient can be withdrawn. He, however, opined that such decision needs to be taken by medical experts instead.


Justice Bhushan explained, "We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, it is in the best interests of the patient that the decision be taken by competent medical experts and that such decision be implemented after providing a cooling period at least of one month to enable the aggrieved person to approach the Court of Law.


The best interest of the patient as determined by medical experts shall meet the ends of justice. The medical team by taking decision shall also take into consideration the opinion of the blood relations of the patient and other relevant facts and circumstances."


Justice Bhushan then summarized the findings of the Court as follows:


"(i) The Constitution Bench in Gian Kaur's case held that the "right to life: including right to live with human dignity" would mean the existence of such right up to the end of natural life, which also includes the right to a dignified life up to the point of death including a dignified procedure of death. The above right was held to be part of fundamental right enshrined under Article 21 of the Constitution which we also reiterate.


(ii) We agree with the observation made in the reference order of the three-Judge Bench to the effect that the Constitution Bench in Gian Kaur's case did not express any binding view on the subject of euthanasia. We hold that no binding view was expressed by the Constitution Bench on the subject of Euthanasia.


(iii) The Constitution Bench, however, noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life and those in which he decides to administer a lethal drug even though with object of relieving the patient from pain and suffering. The latter was held not to be covered under any right flowing from Article 21.


(iv) Thus, the law of the land as existing today is that no one is permitted to cause death of another person including a physician by administering any lethal drug even if the objective is to relieve the patient from pain and suffering.


(v) An adult human being of conscious mind is fully entitled to refuse medical treatment or to decide not to take medical treatment and may decide to embrace the death in a natural way.


(vi) Euthanasia as the meaning of words suggest is an act which leads to a good death. Some positive act is necessary to characterize the action as Euthanasia. Euthanasia is also commonly called "assisted suicide" due to the above reasons.


(vii) We are thus of the opinion that the right not to take a life-saving treatment by a person, who is competent to take an informed decision is not covered by the concept of euthanasia as it is commonly understood but a decision to withdraw life saving treatment by a patient who is competent to take decision as well as with regard to a patient who is not competent to take decision can be termed as passive euthanasia, which is lawful and legally permissible in this country.


(viii) The right of patient who is incompetent to express his view cannot be outside of fold of Article 21 of the Constitution of India.


(ix) We also are of the opinion that in cases of incompetent patients who are unable to take an informed decision, "the best interests principle" be applied and such decision be taken by specified competent medical experts and be implemented after providing a cooling period to enable aggrieved person to approach the court of law.


(x) An advance medical directive is an individual's advance exercise of his autonomy on the subject of extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The purpose and object of advance medical directive is to express the choice of a person regarding medical treatment in an event when he loses capacity to take a decision. The right to execute an advance medical directive is nothing but a step towards protection of aforesaid right by an individual.


(xi) Right of execution of an advance medical directive by an individual does not depend on any recognition or legislation by a State and we are of the considered opinion that such rights can be exercised by an individual in recognition and in affirmation of his right of bodily integrity and self-determination.



027. exceptions to murder
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