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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1117     OF     2006   

SUKHLAL SARKAR                                              Appellant (s)

                VERSUS

UNION OF INDIA & ORS.                                  Respondent(s)

J     U     D     G     M     E     N     T   

K.S. Radhakrishnan, J.

1. We are in this case concerned only with the question  

whether Division Bench of the High Court in Writ Appeal No.  

172 of 2001 was correct in holding that no case has been made  

out attracting the first exception to Section 300 IPC so as to  

convert the conviction under Section 302 to 304-I IPC

2. The Appellant Sukhlal Sarkar was working as a constable

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in Border Security Force (BSF).  He was convicted under  

Sections 302 and 307 IPC for offences committed in the  

intervening night of 13/14th July, 1996.  The General Security  

Force Court (GSFC) after conducting the full dress trial convicted  

him under Section 302 IPC and sentenced him to undergo  

rigorous imprisonment for life. The order was confirmed by  

Confirming Officer, Inspector General, (IG) BSF.  

3. Dissatisfied with the order, the appellant filed the writ  

petition (W.P.(C) No. 562/1999) which was partly allowed by an  

order dated 13.09.2001 by the learned Single Judge by  

converting the conviction from Section 302 IPC to Section 304-I,  

IPC reducing the sentence from life term to 10 years rigorous  

imprisonment.

4.     Aggrieved by the said judgment, Writ Appeal No. 172 of  

2001 was filed by the respondent herein, which was allowed by  

the High Court vide order dated 9.2.2005 setting aside the  

judgment of the learned Single Judge and confirming the  

judgment of GSFC. Aggrieved by the said judgment, this appeal  

has been preferred.

5.    Counsel appearing for the appellant confined her  

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submission only to the question whether the conviction under  

Section 302 IPC be converted to Section 304-I IPC, for which  

according to the counsel, sufficient grounds exist.

6. Counsel appearing for the appellant has further submitted  

that learned Single Judge of the High Court was justified in  

holding that there was no motive on the part of the appellant to  

do away with the life of his colleague Sanjay Kumar Dubey but it  

was due to grave and sudden provocation he opened fire from  

his rifle resulting in the death of Sanjay Kumar Dubey.   Learned  

counsel for the appellant referred to the evidence of M. Robin,  

P.W 1, who was the sole eye witness to the occurrence.  The  

relevant portion of the evidence of PW 1 was read over to us.  

7.     Learned counsel submitted that the evidence of P.W 1  

would clearly indicate that the deceased Sanjay Kumar Dubey  

had slapped and pushed the appellant down and provoked him  

to open fire from his rifle.  Further it was submitted that the  

evidence of P.W 1 would clearly indicate that the deceased shook  

the appellant's leg with his hand in order to wake him up and all  

those deeds committed by the deceased caused grave and  

sudden provocation to commit the offence. Counsel submitted  

that the learned Single Judge was justified in converting the  

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conviction of the appellant from Section 302 IPC to that of  

Section 304-I IPC.

8.     Learned Senior Counsel appearing for respondents  

submitted that the Division Bench of the High Court had  

correctly appreciated the evidence of PW 1 and came to the right  

conclusion that ingredients of offence of murder punishable  

under Section 302 IPC were clearly made out.  Learned counsel  

also referred to the evidence of PW 1 and submitted that there  

was no grave and sudden provocation for the appellant to claim  

the first exception of Section 300 IPC warranting conviction  

under Section 304-I IPC.

9.   We have critically gone through the evidence on record  

especially the evidence of PW 1.  Considerable thrust was made  

by the counsel appearing for the appellant on the following  

evidence of PW 1 which reads as follows: “Infuriated, Sanjay  

Kumar Dubey slapped and pushed the accused and the accused  

fell down”.  Learned Single Judge, it may be noted, had opined  

that the provocation was mild, but was sudden and hence the  

exception to Section 300 would apply.

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10.   The meaning of the expressions “grave”  and “sudden”  

provocation has come up for consideration before this Court in  

several cases and it is unnecessary to refer to the judgments in  

those cases.  The expression “grave” indicate that provocation be  

of such a nature so as to give cause for alarm to the appellant.  

“Sudden” means an action which must be quick and unexpected  

so far as to provoke the appellant.  The question whether  

provocation was grave and sudden is a question of fact and not  

one of law.  Each case is to be considered according to its own  

facts.  

11.    Under Exception 1 of Section 300, provocation must be  

grave and sudden and must have by gravity and suddenness  

deprived the appellant of the power of self-control, and not  

merely to set up provocation as a defence.  It is not enough to  

show that the appellant was provoked into loosing his control,  

must be shown that the provocation was such as would in the  

circumstances have caused the reasonable man to loose his self-

control.  A person could claim the benefit of provocation  has to  

show that the  provocation was grave and sudden that he was  

deprived of power of self-control and that he caused the death of  

a person while he was still in that state of mind.

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12.     We have critically gone through the evidence of PW 1, the  

eye witness, and we are of the considered view that the deceased  

had not provoked the appellant in inviting him to fire from his  

rifle so as to kill him. The deceased, it may be noted was  

unarmed.   PW 1 was only trying to wake up the appellant so as  

to do patrolling duty.  Assuming that the deceased had slapped  

and pushed the appellant,  such an action of the deceased could  

not be characterized as grave and sudden, so as to provoke the  

appellant to fire at the deceased killing him at the spot.

13.   We, therefore, find no infirmity in the reasoning of the  

Division Bench of the High Court in declining to convert the  

conviction to Section 304-I IPC. We, therefore, dismiss the  

appeal.

....................................J (K.S. RADHAKRISHNAN)

....................................J (DIPAK MISRA)

NEW DELHI April 24, 2012

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