V.G.OAK,J. - (1.) I agree with my learned brother that Mahmoods conviction under Sec. 302, I.P.C. should be upheld, but his sentence should be reduced to imprisonment for life. I would like to add a few words to explain the proper approach in cases of homicide committed under provocation.
(2.) IN order to bring his case under Exception 1 to S. 300 I.P.C., an accused has to establish the following ingredients : (i) The provocation was sudden; (ii) the provocation was grave; and (iii) loss of self control. These three ingredients may be considered one by one. (i) : Whether the provocation was sudden or not does not present much difficulty. The word sudden involves two elements. Firstly, the provocation must be unexpected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. If the man giving the provocation is killed within a minute after the provocation, it is a case of sudden provocation. If the man is killed six hours after the provocation, it is not a case of sudden provocation. (ii) The main difficulty lies in deciding whether a certain provocation was grave or not. A bare statement by the accused that he regarded the provocation as grave will not be accepted by the Court. The Court has to apply an objective test for deciding whether the provocation was grave or not. A good test for deciding whether a certain provocation was grave or not is this : "Is a reasonable man likely to lose self -control as a result of such provocation ?" If the answer is in the affirmative, the provocation will be classed as grave. If the answer is in the negative, the provocation is not grave. In this context, the expression reasonable man means a normal or an average person. A reasonable man is not the ideal man or the perfect being. A normal man sometimes loses temper. There is, therefore, no inconsistency in saying that, a reasonable man may lose self -control as a result of grave provocation. A reasonable or normal or average man is a legal fiction. The reasonable man will vary from society to society. A Judge should not impose his personal standards in this matter. By training, a Judge is a patient man. But the reasonable man or the normal man need not have the same standard of behaviour as the Judge himself. The reasonable man under consideration is a member of the society, in which the accused was living. So, education and social conditions of the accused are relevant factors. An ordinary exchange of abuses is a matter of common occurrence. A reasonable man does not lose, self -control merely on account of an ordinary exchange of abuses. So Courts do not treat an ordinary exchange of abuses as a basis for grave provocation. On the other hand, in most societies adultery is looked upon as a very serious matter. So Courts are prepared to treat adultery as a basis for grave provocation. (iii) I have pointed out that the question of loss of self -control comes up indirectly in deciding whether a particular provocation was grave or not. So, if it is proved that the accused did receive grave and sudden provocation, the Court is generally prepared to assume that homicide was committed while the accused was deprived of the power of self -control. In some cases it may be possible for the prosecution to prove that the accused committed the murder with a cool head in spite of grave provocation. But such cases will be rare. So when the accused has established grave and sudden provocation, the Court will generally hold that he has discharged the burden that lay upon him under Exception 1 to Sec. 300. I.P.C. In the present case Mahmood accused was charged by Ram Charan for theft. Such a charge will not be treated by a reasonable man seriously. The provocation received by Mahmood accused was not grave. So the case is not covered by Exception 1 to Sec. 300, I.P.C. He was rightly convicted for murder. In view of the provocation received by him, the proper sentence is imprisonment for life.
(3.) THIS is an appeal by Mahmood against his conviction under Sec. 302, I.P.C. for the murder of an old man by the name of Ram Charan and the sentence of death, passed on him by the learned Additional Sessions Judge, Aligarh. The prosecution case against him briefly was this : The deceased Ram Charan was a merchant who attended various exhibitions for the purpose of selling his merchandise. In December, 1959, he went to the fair at Saroli. There he met the accused Mahmood and a youth by the name of Nasim. At the close of this fair Ram Charan decided to move on to another fair which was to be held at a place called Sikandera Rao. Mahmood and Nasim accompanied him. They reached that place on the 18th of Dec -and engaged a room in a dharmshala near the Railway Station. The three of them visited the exhibition grounds and looked around for suitable stalls for their use. After this they returned to the dharmshala. Ram Charan who knew how to cook, prepared a meal for the party. Later, on going inside the room he discovered that some one had removed a sum of Rs. 50/ - which he had kept in a peti. He suspected the accused Mahmood and openly accused him of theft. The latter denied the charge but Ram Charan persisted in this accusation. This led to hot words and mutual abuse. Ram Charan thereupon left the room but Mahmood followed him and stabbed him with a knife several times. Ram Charan collapsed in the verandah and Mahmood tried to escape. However, while escaping from the dharamshala he was seen by a man called Balm Khan who tried to arrest him. Mahmood however, shook him off by stabbing him with his knife. By this time there was a general alarm and several persons turned up and gave chase. They caught up with Mahmood in a field and pelted him with bricks. He fell down and was caught.;