Balku v. Emperor, AIR 1938, Sudden and grave provocation under IPC

Case Name:	Balku v Emperor
Equivalent Citation:	AIR 1938 All 532
Date Of Judgement:	13 JUNE, 1938
Court:	Allahabad High Court
Case No:	Criminal Appeal No. 67 of 1938
Case Type:	Criminal Appellate
Petitioner:	Balku
Respondent:	Emperor
Bench:	(2 judges) Mr. Justice Bennet Mr. Justice Verma
Referred:	By Abalu v. EmperorRegarding Shyama Pado Deb v Sundar Das

Introduction

In the present case of ‘Balku v. Emperor AIR 1938’, criminal appellate the court dealt with the Section 300 Exception 1 of Indian Penal Code (IPC) stating as (sudden and grave provocation) “When 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.”

Essential for exception 1 are as follows: –

• The accused must had been provoked by the deceased.
• Provocation needs to be sudden.
• Provocation needs to be grave.
• The accused had lost his controlling power.
• The accused must have caused the death of the person who gave the provocation not in self-defence.
• The accused must have caused the death during the continuance of his distress of the power of self-control.
• The accused should not have mala-fide intention.

Facts of the case

• On 19th September 1937, Manni (father-in-law of Accused) of Singhri, Thatia Thana filled the complaint against his son-in-law(accused) after 7 a.m…
• Then Manni exclaimed that on 13th September 1937, Balku (accused, Age-25} came to his house to pick up his wife, Nanhi, (Age-16 or 17) (Daughter of Manni).
• On the same day Budhu, (Nanhi sister’s husband) also came. Balku asked Manni to send Nanhi with him but Manni said that she would return with him if he stays with them for 10 ten days.
• Balku insisted to take her with him, and on this Budhu said- “Shut up, who are you to take her? I will not send her.” And, then they both had a verbal argument.
• In the night, Balku and Budhu slept on the same Bed in verandah. Then Budhu got up from bedand went in adjacent room and closed the door. Balku got up and peeped though the door and saw that Budhu was committing adultery with his wife, Nanhi. He couldn’t do anything that time as the door was closed, he returned to his bed. When Budhu returned from the room after committing adultery with Nanhi, and laid down on the bed, Balku waited for some time and the moment he saw Budhu was dozzing, he stabbed him with his knife.
• Balku said that” Budhu deprived his honour”. As the door was locked, he couldn’t do anything to his wife at that time . Manni got up to the screams. Manni, his wife, his daughter (Nanhi), Khiali and Rupan all the family members were the witnesses of this incident. They tried to capture Balku, but he rushed at them with a knife and they all stood aside and then he escaped.
• Next day after escape in the morning Balku was found in the fields, and Sub-inspector arrested him.
• Accused, Balku, was took before Magistrate on 24th September and gave a detailed statement like how he killed him, the reason behind this act and many more.

Issue raised

1. Whether the accused should be convicted for murder under Section 300 or should he get the benefit of exception 1 of Section 300 of the Indian Penal Code ?

Contentions of the petitioner 

1. The petitioner argued that on seeing your wife carry on adultery with somebody else, no man can bear it. So as in this case, Balku was provoked, Graved, and murdered Budhu.

Contentions of the respondent

1. The respondent’s counsel satisfied that after witnessing the act being held between both of them Balku waited for period of time till Budhu to come out and to lay back on the bed and be asleep on the bed before he assaulted him.

• In addition to the argument, the respondent put forward another argument. i.e. They claimed that the provocation is related to a series of incidence, so the provocation was definitely not sudden.

Judgement

• This is a Judgement reference by the Judge of Farrukhabad district court of a sentence of death which he has passed on one Balku, aged 25 years, a Teli of the town of Kanauj in Farrukhabad district. The learned Sessions Judge states that he finds no extenuating circumstances in this case.
• The Allahabad High court held that in its opinion that just only the refusal to send accused’s wife back to accused (Balku) is not a enough reason for the act which Balku did on that night. There must have been some other strong and valid reason behind his act.
• The court then took note of the Exception 1 of Section 300 of Indian Penal Code (IPC). It states that: “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 .“
• When Budhu came and slept beside Balku on the Bed, accused must have thought that man sleeping next to me had been carry out adultery with his wife, who is a minor and indigence him of his honour. This thought might have infuriated his mind. In that situation, the provocation was both “grave” and “sudden”.
•  The court held that “sudden” does not mean ‘immediate action’, sudden means “something that is anticipated.” Even the medical evidence shows that there were a number of incised wounds on the deceased. One was on the left side; four wounds were on the arms and five wounds were on the chest. Death was due to shock and bleeding from these incised wounds of the heart and lungs caused by a sharp brink weapon such as the knife produced. It is not stated there in the evidence but it appears that this knife belonged to the accused and was with him in that period. hence, no period of time was required for the accused to search for the weapon. 
• The court have been  referred to Abalu Das v. Emperor (1901) 28 Cal. 571, where there was a case in which it was held that when certain accused persons had the provocation of seeing adultery being committed by the deceased with the wife of one of them, the provocation would be considered to be grave and sudden after an interval during which the deceased man was taken to a certain distance before being assaulted.
• Finally, court declared the judgement that in this case, Exception 1 will apply and reduced the conviction from Section 302 Indian Penal Code (IPC) to Section 304 Indian Penal Code (IPC). The court sentenced Balku to five years of imprisonment and discharged him of the offence under Section 302 IPC.

Conclusion

This case was based on the implementation of Exception 1 of section 300 of Indian penal Code (IPC). Here in this case the judge throws the light and expand the meaning of “sudden and grave”, and over rule the judgement passed by the inferior court, even reduced the conviction from section 302 of IPC to section 304 of IPC, punishment from life imprisonment to punishment to 5 years of imprisonment.

Written by: Y Sakshi Choudhary, Guru Ghasidas Central University

Admin