Pleading book for indian litigants through free e books web site by Ramanathan G. Advocate - HTML preview

Secondly, it must be grave, i.e., of sufficient seriousness to have the result of depriving a reasonable man of his power of self-control.

And thirdly, it must be sudden. 'A provocation, however grave, which is not sudden but is a chronic one, will not satisfy the requirements of Exception 1 : (See Jumma Fateh Mohamed v. Emperor, AIR 1932 Lah 438). In Nanavati's case, AIR 1962 SC 605 (supra), the Supreme Court has also pointed out at p. 630 that '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.'

15. The second ingredient is that there must be actual loss of self-control by the accused as a result of the grave and sudden provocation received by him. Again, in the words of Viscount Simon, L.C. in Holmes' case, 1946 AC 588 (supra),

'there must be material from which the view might fairly be taken that the accused was in fact acting under the stress of such provocation'.

In Lee's case, 1963-1 All ER 73 (supra), their Lordships considered how the loss of self-control occurred and how quickly the retaliation followed on the act, and commented on the fact that though it was not possible, under the circumstances of the case, to have direct evidence of actual loss of self-control by the accused, (and, indeed, in view of the alternative defences taken by him, viz., accident or self defence, or provocation, the failure on his part to testify to loss of self-control could not be fatal). It did not mean that the law could dispense with evidence of any material showing loss of self-control, which could even be proved by evidence from which loss of self-control could reasonably be inferred. In any case, the Court was not empowered, in the absence of any material on the point, to speculate nor to give the accused the benefit of doubt on the basis of such speculation.

16. The third ingredient is that the act of killing by the accused must have been done whilst he was deprived of his power of self-control by the grave and sudden provocation, that is to say, it must be done under the immediate impulse of provocation: (see Queen v. Nokul Nushyo, 7 Suth WR Cri 27).

Discussing the question how long the law will allow for the blood continuing heated to warrant an inference that the act of killing was done whilst the accused was deprived of his power of self-control, it is laid down in the East Pleas of the Crown, Vol. 1, p. 251, that the question has to be considered with reference to the suspension of reason arising from sudden passion continuing from the time of the provocation received to the very instant of the mortal stroke given; and if from any circumstances whatever it appears that the party reflected, deliberated, of cooled, any time before the fatal stroke was given, or if in legal presumption there was time or opportunity for cooling, the killing will amount to murder; as being attributed to malice and revenge rather than to human frailty. Again, if it appears that the accused meditated upon his revenge, or used any trick or circumvention to effect it, it would show deliberation, which was inconsistent with the excuse of sudden passion and was the strongest evidence of malice.

In the words of the Supreme Court in Nanavati's case, AIR 1962 SC 605 (p. 630),

"the fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation'.

In R. v. Duffy, 1949-1 All ER 932n. which was cited with approval by the Supreme Court in Nanavati's case, AIR 1962 SC 605 (supra): it was pointed out that -

".......the circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that the person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control which is of the essence of provocation. Provocation being.. . ,as I have defined it, there are two things, in considering it, to which the law attaches great importance. The first of them is, whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind... .Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation - that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation given".

17. The fourth ingredient is that the retaliation must be proportionate to the provocation, i.e., the instrument or manner of retaliation should not be grossly disproportionate to the offence given. This again appears to bear on the question whether the provocation was the primary cause for the retaliation, or whether it was only a pretext for it. Because, ordinarily, in normal reasonable persons the retaliation is always proportionate to the provocation. Consequently, greater or graver is the provocation, the more serious is the mode of retaliation. But, no reasonable person meets the threat of a fist blow with a dagger.

In Mancini v. Director of Public Prosecutions, 1942-AC 1 the House of Lords held that the use of a dagger in reply to the act of provocation, which consisted in the aiming of a first blow, was disproportionate, and that consequently the accused could not take the advantage of the plea of grave and sudden provocation. In the words of their Lordships,

'the mode of resentment must bear a reasonable relationship to the provocation, if the offence is to be reduced to manslaughter'.

18. It may here be mentioned that in India, if an accused pleads an exception, then, because of Section 105 of the Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the exceptions lies upon him, and the Court is enjoined to presume the absence of such circumstances. Consequently, the accused must establish from the evidence the existence of such circumstances; and as we are precluded to presume them, in the absence of their proof, we are precluded from speculating and from giving the accused any benefit of doubt on the basis of such speculation.

19. In the instant case, the material bearing on the question of the plea of 'grave and sudden provocation consists of the evidence of Kallu (P.W. 3) and Lalkhan (P.W. 4), the relevant portion of which we reproduce below : Kallu (P.W. 3).

20. The accused-appellant, in his statement under section 342 of the Code of Criminal Procedure has totally denied his part in the incident, and has pleaded that he was not at the place of the incident at all, that he did not take any part in it and that he had been falsely implicated due to enmity. He has also examined no witness in defence.

21. Though it would have been better if the accused-appellant had not lied as to the circumstances under which the incident took place, we cannot punish him for his lies. We shall, on the other hand, have to consider the evidence bearing on the issue in the light most favourable to him.

22. The provocative incident is alleged to be the uttering of abuses which the deceased was hurling at the accused-appellant in front of his (accused's) house. While the tempers were thus frayed, there followed an insinuation from the deceased that the accused-appellant had once misbehaved with reference to his pigeon Though Kallu (P.W. 3) does not give the nature of the abuses, Lalkhan (P.W. 4) in his cross-examination has stated that. We can, therefore, hold that the abuses were filthy and could consequently have provoked the accused-appellant to loss his self-control. This is also evident from the fact that in retaliation the accused-appellant was also provoked to abuse the deceased in return, and even to grapple with him. Thereafter, according to Lalkhan (P.W. 4), the deceased made an insinuating reference to the pigeon incident, we do not know what the pigeon incident was. The witness (P.W. 4) was not asked to explain what it was, nor has the accused-appellant explained it. It is, however, clear that the expression is capable of bearing the meaning which the learned counsel for the defence suggested, viz., that the deceased had insinuated that the accused-appellant had sexually misbehaved with his pigeon. The insinuation aforesaid coming closely after the filthy abuses which had led to a scuffle between the deceased and the accused-appellant, we are of opinion that it would amount to a grave and sudden provocation, because any reasonable man belonging to the same class of society as the accused and placed in the situation in which the accused was placed, would be so provoked at the suggestion as to lose his self-control. It would be a grave provocation, because it would have been a very serious aspersion on the character of the accused-appellant, and it would also have been sudden because in the midst of abuses, when due to frayed tempers abuses were being hurled by the parties on each ether, the accused-appellant could not have expected that the deceased would then make such a scurrilous suggestion when the dispute between then was relating to the flow of household dirty water through a drain leading towards the graveyard.

23. The next ingredient is whether the accused had actually lost his self-control because of the grave and sudden provocation. Of this fact, there is no evidence, because the person, namely, the accused-appellant, who could have thrown the best light on it, has chosen to deny the incident altogether, it is true that, as pointed out by the Judicial Committee of the Privy Council in Lee's case, 1963-1 All ER 73 (supra), proof of this fact, cannot be dispensed with by the Courts; but loss of self-control can also be shown by inference instead of by direct evidence; and if the facts proved do suggest a reasonable inference of loss of self-control, we would be entitled even to discard the denial of the accused and hold that there was loss of self-control. As has been pointed out by the Judicial Committee of the Privy Council in Lee's case, 1963-1 All ER 73 (supra), at p. 80,

'what is essential is that there should be produced, either from as much of the accused's evidence as is acceptable or from the evidence of other witnesses or from a reasonable combination of both, a credible narrative of events disclosing material that suggests" provocation in law'. The evidence of Kallu (P.W. 3) and Laikhan (P.W. 4), which we have detailed above, amply shows that the hurling of abuses by the deceased on the accused-appellant only provoked the accused-appellant to retaliate with abuses and physical violence with his hands, so that a scuffle ensued between them. This was interrupted by Ayubkhan, who then went away. Murshad (the deceased), however, stayed behind and made the filthy insinuation referred to above. On that there was further exchange of hot words. It appears that by that time the frayed tempers had not cooled, and it was the last insinuation which so infuriated the accused-appellant that after a few more exchanges of hot words, he went into his house, came out with a ballam and hit the deceased with it. In our opinion, the interval of time between the throwing of the insinuation and the accused-appellant's going into his house and coming out with a ballam was so short that it cannot be said that there was time enough for passion to cool and for reason to regain dominion over the mind. We are, therefore, of opinion that, under the circumstances established in the case, the accused appellant struck the deceased with a spear whilst he was deprived of the power of self-control by the grave and sudden provocation given by the deceased.

24. The last ingredient is that retaliation must be proportionate to the provocation, it is true that retaliation must bear a reasonable relationship to the provocation; but, in the instant case, we cannot say that the giving of one blow with a spear, which it appears the accused-appellant found handy at the moment in his house, can be said to be so grossly disproportionate to the provocation as would show that the provocation was not the primary cause of the retaliation but only a pretext for it.

25. We, therefore, hold that the accused-appellant is entitled to protection under Exception 1 to Section 300 of the Indian Penal Code. His case would thus fall under part one of Section 304 ibid. The conviction and sentence of the accused-appellant under Section 302 are accordingly set aside and, instead, he is convicted under part one of Section 304 ibid. As regards the sentence, in our opinion, a sentence of rigorous imprisonment for a period of seven years would amply meet the ends of justice. We order accordingly.

            Order accordingly.

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TO ADD IN THE CHAPTER ABOUT HABEAS WRIT PETITIONS, that Police may not produce the person in the Court, thus take care of your relatives than planning to file this petition. No action is initiated against police for their failure to produce the missing person:

Very imp Habeas Corpus case, 2009 MP

2009 Legal Eagle MP page…

Dali Shrivastava Vs. State of M.P.

w .p .no. 4952/200, 16-03-2009

Family law – Abduction of Husband – Wife’s family alleged criminals – Allegedly abducted the husband and his father – In the Missing Persons FIR, no suspicion is made against family of the wife about abduction – Police/ Govt. respondents had taken all necessary procedures to search the missing persons – Hence the family of wife is not suspected in the FIR, no habeas writ had been issued by the Court, to the individual respondents – Directions issued to the Police, to conduct investigation on Missing Persons FIR – Writ petition disposed off – Article 226 of Constitution of India – Section 498A of Indian Penal Code, 1860.

Dipak Misra, J.:-

(1) In this writ petition, the petitioner has prayed for issue of a writ of habeas corpus commanding the respondents to produce the corpus of his brother and father namely umesh kumar shrivastava and ramesh kumar shrivastava. The present petition has been filed on the allegation that they have been kidnapped by the respondents no. 5 and 6 avinash shrivastava and abhilash shrivastava with the help of some criminal elements. It is contended that though an fir has been lodged, the respondents no. 1 to 4 have not submitted any positive report.

(2) It is the further case of the petitioner that her brother was married to pratibha shrivastava in the year 1999 who pressurized her brother to shift to jabalpur on the threat that she would implicate the whole family in a criminal case and eventually did implicate them in an offence punishable under section 498 - a of the indian penal code which is pending before the judicial magistrate, first class, jabalpur against the petitioner, her brother and father.

(3) As pleaded, wife of umesh kumar shrivastava filed an application under section 125 of the code of criminal procedure for grant of maintenance before the learned family judge, jabalpur and the same was decided ex parte against the brother of the petitioner. The sister - in - law of the petitioner threatened on number of occasions to kill her brother and father with the support of respondents no. 5 and 6. Because of the said threats, brother of the petitioner had filed a complaint before the police station, mahila thana, jabalpur seeking police protection on 11. 12. 2001. It is contended that umesh shrivastava and ramesh shrivastava travelled from their village to jabalpur on 24. 9. 04 for appearing in a criminal case pending before the judicial magistrate, first class, jabalpur, which was fixed for recording of evidence on 25. 9. 04. They never appeared before the said court and counsel appearing for the accused contacted the petitioner by telephone on very next day and only then she came to know about the missing of her father and brother. She searched for them in all the villages where her relatives live but the search was in vain. She lodged a missing report at the police station, badi and in the said report, she had stated about her doubt as regards the role played by the respondents no. 5 and 6 but unfortunately, the police did not mention their names in the fir. She also submitted a report before respondents no. 2 and 3 but none of the respondents has taken any action.

(4) Certain newspaper items have been brought on record to highlight how the petitioner has endeavored to find the whereabouts of her brother and father. Various averments have been made how she has come to know about one pappu sartaj and how some unknown persons have contacted said pappu sartaj at central jail. It is urged that pappu sartaj sujalpurwala who is in custody of central jail, ujjain had knowledge with regard to the kidnapping of her father and brother but no action is being taken.

(5) In this factual backdrop, a prayer has been made for the issue of a command to produce the father and brother of the petitioner before this court.

(6) A counter affidavit has been filed by the respondents no. 1 to 4 that on the basis of the fir lodged by the petitioner, a missing report no. 15/04 was registered at police station, badi, bhopal, raisen and eventually crime no. 87/05 under section 364 of i. P. C. Has been registered against unknown persons. On the report of the petitioner, statements of nandlal alias nandram meena and respondents no. 5 and 6 have been recorded. Pamphlets have been published and distributed in all the districts of madhya pradesh. News items have been shown in t. V. And the same have been telecast in the programme "sansani" with the bio - data and photograph of umesh shrivastava and ramesh shrivastava. News items have also been published in `dainik bhaskar' and `nav bharat'. Radio massage has been sent to all the police stations in madhya pradesh informing about the two missing persons. The respondents have also sent police teams to hoshangabad, bhopal, raisen, jabalpur and bhilai to know the whereabouts of the missing persons.

(7) It is put forth that the said respondents have taken every possible step to trace out the missing persons. It is also highlighted that umesh shrivastava was married to pratibha shrivastava in the year 1999 and as differences arose, pratibha shrivastava initiated criminal proceedings under section 498 - a of i. P. C. Against umesh shrivastava and ramesh shrivastava.

(8) A reply has been filed by the respondents no. 5 and 6 stating inter alia, that the allegations made are incorrect. They have put forth how a criminal case under section 498 - a, 506 of i. P. C. And under section 3 and 4 of dowry prohibition act forming the crime no. 26/01 came to be initiated wherein umesh shrivastava, ramesh shrivastava and dali shrivastava were arrested. It is contended that in the wedlock, one male child namely, shorya, has been born. A reference has been made to application filed under section 125 of code of criminal procedure and also there is a mention with regard to order granting interim maintenance. The allegation of threat by wife of umesh shrivastava has been denied. There is also an assertion denying any knowledge with regard to the missing persons.

(9) It is highlighted that in the fir, the petitioner had not mentioned the names of respondents no. 5 and 6. It is further put forth that umesh shrivastava and ramesh shrivastava had taken a loan of rs. 10 lacs in the name of petitioner from khadi gram udyog and recovery proceedings of rs. 15 lacs is pending against the petitioner wherein the said ramesh shrivastava and umesh shrivastava are guarantors, who had mortgaged their land and till today not a single installment has been paid. The said umesh shrivastava and ramesh shrivastava have also taken loan from many persons from bhopal and from their village badi where their agricultural land is situated. They had further taken loan of rs. 1,50,000/ - from one sanjay sharma, bhopal who had obtained a decree against them. In essence, it is set forth that due to present situation, said umesh shrivastava and ramesh shrivastava have absconded.

(10) We have heard mr. N. K. Tiwari, learned counsel for the petitioner, mr. Deepak awasthy, learned counsel for respondents no. 1 to 4 and mr. Abhinav dubey, learned counsel for respondents no. 5 and 6.

(11) It is submitted by mr. Tiwari that it is obligatory on the part of the respondents no. 1 to 4 to produce the corpus of umesh shrivastava and ramesh shrivastava before this court and the search made by investigating team is inadequate.

(12) Per contra, mr. Deepak awasthy, learned govt. Advocate submitted that they have given details of search and they undertake to proceed as per the f. I. R. Mr. Abhinav dubey, learned counsel submitted that the said persons had absconded to avoid the criminal proceedings and auction of their property as they are guarantors and pending of other execution proceeding because of the decree.

(13) Having heard the learned counsel for the parties and upon perusal of the material documents brought on record, we are inclined to think the respondents no. 1 to 4 have taken appropriate steps in searching said umesh shrivastava and ramesh shrivastava. There had been paper publications and telecast in the t. V. And appropriate steps have been taken in the electronic and print media. On a perusal of the fir it is noticeable no names had been mentioned.

(14) In view of the aforesaid, we are only inclined to state as conceded to by mr. Deepak awasthy, the respondents should act on the f. I. R. And accordingly it is so ordered.

(15) The writ petition is accordingly disposed of.

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TO ADD IN THE PLACE WHERE I HAD MENTIONED A Motor Vehicles Act, 1988, Section 166 – Accident – Claim for Compensation – CASE, WHERE THE OWNER HAD TO PAY COMPENSATION, THAT THERE IS ANOTHER LAW:

Free Passenger in Private vehicle to get Insurance cover for accident, 2009 MP

2009 Legal Eagle MP page …

Gorlibai Vs. Kailash

m .a .no. 1677 of 200, 17-06-2009

Motor Vehicles Act, 1988, Section 149(2)(a) – Insurer's right to contest - Breach of conditions of Policy – Defence that, Private vehicle was used as Commercial – Trial Court exonerated the insurer, and claimant challenged that also – There is no proof that, claimant had paid any ticket fare to travel – Vehicle daily passing through that route is no proof of being used commercially – Insurer appointed an investigator, but his report not filed in the Court – Trial Court’s order exonerating the insurer is quashed.

Held: From perusal of the record, it appears that the f. I. R. Which is exh. A1 was lodged by one ramyash tiwari who was not travelling at the relevant time in the offending jeep. In the f. I. R. It is nowhere stated that the appellant was travelling in the offending jeep as a fare - paying passenger. N. A. Nos. 2 to 9 are the statements of ramkubai, hemabai, jhulu bai, rukhdi bai, jhabar singh, sona bai and gorlibai, who is appellant, which were recorded by the police between 30. 1. 2004 and 4. 2. 2004. The appellant has examined herself as aw 1 and dr. D. P. Joshi, aw 2. While the insurance company, respondent no. 3, has examined krishnalal, naw 1; ramyash tiwari, naw 2; arun k. Singh, naw 3 and manoharlal himself has come in the witness - box as naw 1. Gorlibai (appellant herein) , aw 1 has specifically denied that she was a fare - paying passenger. She has also denied that she has given the statement to the police to the effect that she paid a sum of rs. 5 as fare. Ramyash tiwari who is the sub - inspector of police, has admitted in his statement that at the time of recording of the statement gorlibai was in the hospital and was grievously injured. S. I. Ramyash tiwari has not stated in his examination - in - chief that he has recorded the statement of gorlibai relating to payment of fare. Respondent no. 3 has not taken any steps for calling the record of criminal case and also did not controvert the appellant to the effect that she has stated to the police authorities that she was a fare - paying passenger. For the purpose of contradiction it was necessary for the respondent no. 3 to call the original record of the criminal case, which was containing the statement of appellant. Only on the basis of admission of appellant to the effect that the offending vehicle passes through that route on daily basis, it cannot be said that the appellant was a fare - paying passenger. Manoharlal who is respondent no. 2 herein, has examined himself and he has stated that he was himself travelling in the offending jeep at the relevant time. He has further stated that the appellant was working at her place and he was knowing the appellant, therefore, appellant was allowed to travel in the offending jeep. Manoharlal was cross - examined by respondent no. 3 and it has been suggested by the respondent no. 3 that in connivance with police party, statement of the appellant was got changed. Statement of the appellant, exh. Na9, is original statement or the changed statement could have been proved only by calling the original record of the criminal case for which no steps have been taken by the respondent no. 3. It is true that some other claim cases were also filed by the claimants who were travelling in the offending jeep and the matters were settled by the respondent no. 2 out of the court. But, only on the basis of this it cannot be said that the appellant was a fare - paying passenger. Respondent no. 3 did not bother to call the other passengers who were travelling at the relevant time to prove the fact that they were fare - paying passengers. It is not in dispute that respondent no. 3 has appointed an investigator who has also submitted investigation report. Neither the investigation report has been filed nor investigator was examined. In the peculiar facts and circumstances of the case, in the opinion of this court learned tribunal has committed error in exonerating the respondent no. 3. (Paras 16 to 18).

Motor Vehicles Act, 1988, Section 173 – Accident – Appeal to enhance the Compensation – The injuries suffered is correctly compensated in the order of the Trial Court – Directions issued as to disbursement of that amount.

Held: So far as the compensation is concerned, looking to the injuries sustained by the appellant, the amount awarded by the learned tribunal appears to be just and reasonable which requires no enhancement. In view of this the appeal filed by the appellant stands allowed in part. Findings of the learned tribunal so far as it relates to the exoneration of respondent no. 3 is concerned stands set aside. The liability of payment of compensation of respondent no. 3 shall be joint and several with the respondent nos. 1 and 2. Learned tribunal is directed to deposit 80 per cent of the amount awarded in the name of appellant in a nationalised bank having its branch office nearest to the residence of appellant with a further direction to the concerned branch not to allow any loan on the amount of f. D. R. And interest shall be payable to the appe