Mohapatram, J.
1. The we accused persons Laikhan Pradhan and Ramchandra Pradhan stand convicted under Section 304, Penal Code, and have been sentenced to rigorous Imprisonment for 7 years each. They have also been convicted under Section 201, Penal Code and sentenced to rigorous Imprisonment for one year each. The sentences are to run concurrently. The two appellants were charged undpr S. 302, Penal Code.
2. The prosecution case la that deceased Kartik Pradhan was the brother of the two act cused persons. Laikhan being the eldest, Kartik the second and Ramchandra the last brother. The three brothers were living separate but in the same Khanja with a common courtyard.
The cultivation however was Joint. Deceased Kartik was an old convict. He had been convicted thrice in cases of theft or robbery and was a police survelle. The Chowkidar used to check his presence at home every night. In the morning hours of 29-8-1953 the deceased had climbed up the thatch of neighbour Nrupa Bisi to steal some pumpkins grown on the thatch.
The Inmates of Nrupa's house having raised an alarm, the deceased jumped down. The mothen of the deceased and his wife Bhagabati (P. W. 9) having disapproved of the action of the deceased, he assaulted the mother. As the deceased further attempted to assault his wife Bhagabati, she' sought the assistance of Laikhan, Laikhan having intervened was assaulted and Ramchandra also shared the same fate. There was a scuffle as between the deceased and the two accused persons.
In the meantime Bhagabati left the house and sought for the Intervention of the neighbours Sukru Bisi (P. W. 11) and Padu Padhan. During the course of the scuffle, the two accused persons could fell deceased Kartik down. Laikhan throttled the neck of the deceased with his hands and Ramchandra caught hold of the legs and laid him down under the lemon tree inside the courtyard.
The two accused persons thereafter put a bamboo stick across the neck of the deceased and pressed the stick one on either side. They pressed their feet also on his chest and as a result of this throttling and assault Kartlk died instantaneously. The prosecution story goes on further to say that after this part of the occurrence the two accused persons washed the dead body as it was besmeared with mud and removed it into one room where it was kept conceaied.
Bhagabati (P. W. 9) came back and attempted to get in through the Sadar door which was then closed. But Laikhan advised her that she should fly away or else her husband, who had gone in search of her, might come and strike hen dead. She therefore fled away. Bhagabatt again returned at about evening time when she actually saw the two accused persons removing the dead body.
The Chowkidar came to the house of the deceased to check his presence and marked him absent at home. But while returning he met Bhagabati and her father who told the Chowkidar. that Kartik had been murdered by his two brothers. Thereafter the Chowkidar lodged First Information Report on the next day at about 3-30 A.M.
The Sub-Inspector of Police (P. W. 13) on return from duty took over the charge of investigation at about 1-30 p. m. on 30-8-1953. The two accused persons, it is alleged by the prosecution, led S. I. Police to a tank in Putrupall, nearly a mile away from the place of occurrence and took out the dead body from out of the water of the tank.
3. The defence is a denial of the accused persons having murdered the deceased. They also denied that they concealed the dead body or led the S. I. of Police to the discovery of the dead body. Both the accused persons said that in the morning of the date of occurrence the deceased Jumped from the thatch of neighboun Nrupa, assaulted them and ran away and they do not know the cause of the death of Kartlk, the deceased.
4. The learned Sessions judge has convict, ed the accused persons under Sections 304 and 201, I. P. C. So this appeal by the two accused persons against the Judgment of conviction. The Government have appealed against the Judgment on the ground that it amounts to an acquittal of the accused persons under Section 302, I. P. C.
In the Government Appeal the ground has been taken that the offence is complete under Section 302, I. P. C. and therefore the State have prayed for a conviction of the two accused persons under Section 302, I. P. C. and to sentence them in accordance with law.
5-10. We will first take up the appeal filed by the two accused persons. (His Lordship then examined the evidence & held that he believed the prosecution story which was as told by the eye-witness Gulabati Padhanin wife of accused Ramachandra. Then he proceeded to state as follows):
11. The next question that arises tor consideration is the subject matter of the Government Appeal, that is, whether the two accused persons under the above circumstances are guilty under Section 302, I. P. C., or that the offence comes under Exception 1 to Section 300 as found by the learned Sessions Judge, and as such, the two accused persons are guilty only of culpable homicide not amounting to murder. Exception 1 runs thus:
'Culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of. any other person by mistake or accident.'
On a plain reading of Exception 1, it is clear that the accused persons will be entitled to come within the Exception if. only the deceased was responsible for provoking the accused to such an extent that a reasonable man in the circumstances would lose his power of self-control and further that the provocation must be grave and sudden.
If indeed the circumstances in which the offence was committed indicate that there wag sufficient time for the passion of the accused to cool down and 'that reason had in fact resumed its functions before the fatal blow was given, or the last act was committed which led to the death of the man, it cannot come under Exception 1.
Moreover it is the settled law now that the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. We feel, it is apt to quote here a change to the jury in exposing the law on the subject in a masterly and inimitable way quoted In the judgment of Lord Goddard C. J. at p. 932 in the case of 'R. v. Duffy', 1949-1 All ER 932n (A):
'Provocation is some act, or series of acts,' done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. Let me distinguish for you some of the things which provocation in law is not.
Circumstances which merely predispose to a, violent act are not enough. Severe nervous exasperation or a long course of conduct causing suffering & anxiety are not by themselves sufficient to constitute provocation in law. Indeed, the further removed an incident is from the crime, the less it counts.
A long course of cruel conduct may be more blameworthy than a sudden act provoking retaliation, but you are not concerned with blame here -- the blame attaching to the dead man. You are not standing in judgment on him. He has not been heard in this Court. He cannot now ever be heard. He has no defender here to argue for him.
It does not matter how cruel he was, how much or how little he was to blame, except in so far as It resulted in the final act of the appellant. What matters is whether this girl had the time to say 'Whatever I have suffered, whatever I have endured, I know that Thou shall not kul'. That is what matters.
Similarly, as counsel for the prosecution has told you, circumstances which induce a desire for revenge, or a sudden passion of anger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person nas nad 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 therefore, 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. That is why most acts of provocation are cases of sudden quarrels, sudden blows inflicted with an implement already in the hand, perhaps being used, or being picked up, where there has been no time for reflection.
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 that has been given. Fists might be answered with fists, but not with a deadly weapon and that Is a factor you have to bear in mind when you are considering the question of provocation.'
12. We will further refer to the decision in the case of -- 'Mancini v. Director of Public Prosecutions', 1942 AC 1 (B). It is laid down there that every kind of provocation will not reduce the crime to manslaughter; to have that effect the provocation must be such as temporarily to deprive the person provoked of the power of self-control, as the result of which he commits the act which causes the death.
The test to be applied is that of the effect of the provocation on a reasonable man, 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. It is important to consider whether a sufficient interval has elapsed since the provocation to allow. a reasonable person time to cool, and account must also be taken of the instrument with which the homicide has been effected.
The mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter. In the present case we find from the evidence of P. W. 10, which we have believed, that the deceased Jumped from the roof and fell in the courtyard. The mother did not approve of his attempt to steal the pumpkins. Therefore the deceased gave five slaps to the mother.
When Laikhan came to intercede, the deceased gave him two slaps. Then Ramchandrai also came to the rescue of Laikhan and the deceased gave him a kick. The matter that pertinently arises here is to consider if these acts) of the deceased, that is, giving five slaps to the mother, two to the elder brother Laikhan and one kick to the younger brother Ramchandra, bear any proportion to the way in which the two accused persons behaved subsequently and brought abouti the death of Kartik.
Laikhan caught hold of the deceased by the neck and Ramchandra by the legs and they laid him down under the lemon tree. Laikhan twisted his neck and Ramchandra the legs and thus broke his arms and legs. Thereafter they used a bamboo which was pressed on the neck of the deceased with sufficient violence so as to break the hyoid bone and the thyroid cartilege as appears from the doctor's evidence.
They did not stop there. Both the brothers pressed their feet also on the chest which resulted in the fracture of as many as five ribs and the lelt lung also was punctured. In my opinion these acts of the two accused persons appear to be inhuman, cruel ratnei brutal and out of all proportion to the provocation given by the deceased.
We have taken note of the position that in fact accused Laikhan had 20 injuries all of which are small aorasions 01 a very minor nature on the left thigh and almost healed up when he was examined by tne doctor. There was one more bruise on the front of the right side of the chest. Even then, in our opinion, the mode of resentment does not bear any reasonable relationship to the provocation.
13. Regarding the position that the provocation should be reasonably proportionate to the act of the accused, we may simply re.er to a decision of our Court reported in -- 'Ulla Mahapatra v. The King', AIR 1960 Onssa 261 (C). Indeed it was a case of verbal threat which provoked the offender to kill the victim, but never the less this principle was recognized by their Lordships in the following language:
'The provocation must be an act or series of acts which by their very nature would induce eudden and temporary loss of self-control in a reasonable man so that it can be said he is no longer master of his mind. But mere threat, which may induce a desire for revenge, cannot constitute provocation. Moreover the mode of resentment must bear some proper and reasonable relation to the provocation given.'
The two accused crossed the limit beyond all proportion when they put a bamboo on the neck of the deceased and pressed it with great violence, and further they trampled over the chest of the deceased in a way as to cause fracture of five ribs.
14. One more feaiure appearing from the evidence of P. W. 11 Sukru Bisi will be of some assistance in deciding the point before us. Before leaving the place of occurrence, he says 'I dissuaded them and requested the accused to open the door, but Ramchandra, the accused said that I must give an undertaking to be responsible for their lives'.
Of course this was prior to the bamboo being placed against the neck and before the accused persons trampled over tne chest of the deceased. But this statement indicates that reason had intervened and the accused were capable of deliberations. This would negative the absence of self-control which is an essential factor or bringing the case within the language of Exception 1.
Mr. Sahu however contends that even though there was a temporary intervention of the reason for the time being, ihe passion was still continuing and when they did thesubsequent acts of pressing the bamboo on the neck and trampling over the chest of the deceased they had not their power of self-control. In our opinion, in the evidence of these two witnesses or in any other part of the record there is no material to assume such a position.
15. We are aware of the decision of tne Supreme Court where that Lordships have laid down that in an appeal against the judgment of acquittal, the High Court even though has full power to review the evidence should interfere with the Judgment only for very compelling and substantial reasons, and this opinion of the trial Court who had the advantage of seeing the witnesses and hearing their evidence should be given great weight.
The present case indeed is entirely of a different nature. We have agreed with the new of the learned Sessions Judge in the appreciation of the evidence of the witnesses examined on behalf of the prosecution and confirmed his finding that there was an occurrence as told by the two important prosecution witnesses, as we have discussed above.
The further question that arises is whether on the facts proved by the evidence, it can be taken to be a case coming under Exception 1 to Section 300, I. P. C. It is here any that we have directed from the learned Sessions Judge & found that the case cannot be brought within the language of Exception 1 to Section 300 and that the accused persons are guilty under Section 302, I. P. C.
16. In our view, therefore, the accused persons are not entitled to the protection of Exception 1 to Section 300. I. P. C. We would, therefore, hold, that the two accused persons are guilty under Section 302, I P. C.; but in the circumstances discussed above, as there was some provocation, the ends of justice would be adequately met by passing an order for lesser sentence of transportation for life.
In this view of the matter therefore the offence under Section 201, I. P. C. does not arise for consideration as the accused persons did not attempt co screen from legal punishment persons other than themselves. Moreover, it has not been definitely proved as to whose information exactly led to the discovery of the dead body.
17. In conclusion, Criminal Appeal No. 17 of 1954 is dismissed and Govt. Appeal No. 11 of 1954 is allowed. The two accused persons are held guilty of the offence under Section 302, I. P. C. each and are sentenced to transportation for life each.
Narasimham, J.
18. I agree.