THE JURISPRUDENTIAL IMPACT OF EXCEPTION 5 TO SECTION 101 OF BNS: A COMPREHENSIVE EXAMINATION OF JUDICIAL REASONING AND PRECEDENTS IN DASRATH PASWAN VS. STATE OF BIHAR

Vidhi Agarwal, Student, KIIT School of Law

INTRODUCTION

The Bharatiya Nyaya Sanhita, 2023, whether a meaningful advancement in India’s legal framework or a mere reflection of the government’s fixation on the term ‘Bharat’ , signifying only a superficial change, is an outcome through the repealing of The Indian Penal Code, 1860.

While the new act has brought certain reforms like de-criminalizing attempt to suicide which was a criminal offence und er section 309 of the IPC,1860 , prioritizing offences against women, children and the State, incorporation community service as a punitive measure for minor offences, etc. , there are still many other offences, including culpable homicide (section 100 of BNS,2023) and murder (section 101 of BNS, 2023) which demand a stringent interpretation, given the profound implications of these crimes on individuals and the society especially. Though the two mentioned offences seem highly similar to each other, the critical understanding of this landmark judgement will help in fructifying the minor yet significant differences between the two.

The case stated above, wherein the accused/appellant killed his wife who was at the age of the 19 years, pursuant to a suicide pact between herself and her husband, revolves around the deeper analysis of exceptions of murder amounting to culpable homicide, specifically ‘Exception 5’ . The foremost contention that gave rise to this case was whether the deceased suffered death with her own consent, free of any misconception, fraud, fear of injury or any other comparable elements, rendering such consent to be futile. The Divisional bench of the Patna High Court, delivered the judgement on 14^th November,1957 to exculpate the appellant from the charge of murder but to convict him under first part of section 304 of IPC,1860 ( Section 105 of BNS,2023). This judgement has served as a benchmark in Indian legal history in multiple cases which will be discussed in subsequent sections of the paper.

BACKGROUND AND FACTS

Flipping through the distinct statistics, reports and surveys, it can be concluded that India is home to plethora of cases of suicides and suicide pacts , of and/or between family, couples, friends, students for various reasons ranging from financial debt, inter-caste marriages, mental illness to religious mysticism/shamanism, or academic failures. Paying detailed attention to such issues, the drafters of the IPC realized the importance of having a separate provision for those persons who with the consent, which is a ‘question of fact and not a question of law’ , assists the individuals with suicidal ideation . The drafters opined that the “motive” of such facilitator in these cases are “far more respectable” than in the usual murder cases. In other words, they recognized that individuals in such situations may not be acting with the intent to commit murder but rather in a state of shared despair. Thus, they found it inappropriate to charge these accused with the same level of culpability as that of a murderer. This led to the integration of Exception 5 under section 300 of IPC,1860, to ensure just and fair prosecution of accused for committing culpable homicide not amounting to murder. The inculcation of the provision portrays that though the defendant party will not be exempted from the punishment, but there certainly be reduction in the liability of their crime. Navigating through the Indian legal history, it can be deduced that there are not much discussions and development in the interpretation and understanding of Exception 5, due to the fact that it has not been invoked by the defendants during the trial. Possible explanation could be that application of this exception would not help them in getting acquitted of the crime altogether. Nevertheless, there are few cases which has elicited the said provision.

Among them is the famous landmark case of Dasrath Paswan Vs. State of Bihar whose judgement is going to be the central piece of critical analysis. The facts of the case are built around the appellant, Dasrath Paswan who was a student of class X and a native of Etwarpur Pakri village, failed at the annual examination for 3 years in succession. His academic underperformance negatively impacted his mental state and emotional equilibrium, leading him to make the tragic decision to end his life. He conveyed his resolution to his wife, who, at the time of this unfortunate incident, was around 19 years old. His wife gave assent only on a somewhat bizarre condition that first he should kill her and then kill himself. This conversation took place at around 8 am on 13^th June,1955. Agreeing to this, the appellant on one fine morning when nobody was present at home except him and his wife, executed the suicide pact and killed his wife by using weapons like bhala and hasuli. Pursuant to the pact, he then ran out of the house with his ‘bloodstained clothes’ inorder to end his life. But before his act could be accomplished, he got hold of by other villagers and made an extra-judicial confession that he killed his wife. The first information report was lodged against the appellant at the nearby police station and soon his criminal trial began.

ISSUES OF THE CASE

The issues in the said case were as follows:-

Whether the deceased was above 18 years of age?
Whether the deceased suffered death at her own and free consent?
Whether the appellant came under the purview of Section 302 of IPC (present section 103 of BNS) or Section 304 of IPC (present section 105 of BNS) ?
Whether the Magistrate gave appellant sufficient time for reflection before recording his confession?

JUDGEMENT OF THE CASE

Keeping in view the extraordinary nature of this case, the accused-cum-appellant approached The High Court of Patna, after the Learned Sessions Judge of Muzaffarpur convicted him for the murder of his wife under section 302 of IPC,1860, and thereby sentenced him to transportation for life.

On appeal, the High Court examined the reasonings and the findings, and agreed with the Learned Sessions Judge that it was the appellant who had killed his wife. In addition, the fact that whether the deceased was in a legal position to give her consent remained undisputed as it was quite prima facie that she was above 18 years of age. For the assessment of consent, the Court found it significant that the deceased laid down on the floor peacefully and coolly, without any attempt to prevent or resist the assault, which points to the conclusion that she had allowed herself to be killed pursuant to the said suicide pact. Lastly, the court quashed all the contentions regarding the issue of sufficient time given to the appellant before making a confession, and stated that the appellant made the statement in an atmosphere of freedom from fear without any possible influence of the police. Basing upon such evidences and circumstances, the High Court found it appropriate to alter the conviction of the appellant to the first part of section 304 of IPC (presently section 105 of BNS) by relying upon Exception 5 of Section 300 of IPC (presently 101 of BNS). The Court thus, held that a moderate sentence would be more fitting since the appellant is an immature young man who was suffering from an inferiority complex. The loss of a devoted wife in itself is a great punishment to him, and hence, the appellant was sentenced to 5 years’ rigorous punishment.

ANALYSIS

Upon the analysis of the judgement and the rationale behind it, there are varied observations that could be bring on to the table for critical discussion. Although I harmonize with what Justice H.K. Chaudhuri delivered the verdict of this case, but at some points it remains quite absurd to consent to the reasonings behind it. Firstly, I vehemently contend the ratio constructed while considering the concept of ‘free consent’. The Court setting a universal principle to test ‘free consent’ merely by the presence of ‘resistance’ and ‘shout’ by the casualty deems to be extremely unsatisfactory. While looking at this particular case, the facts and circumstances should be watched like a hawk. Keeping in mind a typical social and cultural structure of the Indian society, it should be understood, what value a matrimonial union holds in the life of a married woman. Such women are suppressed since their childhood by the perpetrators of patriarchal society who preach them that their departure from their husband’s house should be only during their last rites . In light of these prevalent scenarios in Indian heritage, the Court should have been vigilant in scrutinizing the background of the deceased who simply consented because she didn’t want to remain widow. This prospect of widowhood was very distinctly contended by the Learned Additional Standing Counsel while prosecuting the appellant. Furthermore, it can be strongly validated by a subsequent case of Prabhat Uppal Vs. State wherein the deceased wife wanted to commit suicide along with her husband who disclosed to her that he wanted to end his life, since she too did not want to remain a widow throughout her life which can be corroborated by the following statement:

“On the night of 16.8.1988 at about 12:30 AM/1:00 AM, I disclosed to my wife that I did not want to go back to Muzaffarpur; that I don’t know as to why I am fed up with my life and that I want to commit suicide. I am disclosing all this to you because you are my wife. At this, Shama said that she did not want to lead life like Deepa and that she too would commit suicide”.

CONCLUSION

The ruling in Vijay @ Chand Jain Vs. State of Madhya Pradesh which stated “exception 5 to Section 300, IPC must receive a very strict and not a liberal interpretation and it needs close scrutiny and consent by necessary implication which cannot be presumed in that case”, seems just a beautification of words rather than its practical application. The Courts have failed to establish the requisites to evaluate consent and its nature, especially when the victim is a woman. The provision has been exercised by assessing the circumstances in only one aspect and direction, and i.e., absence of any resistance amounts to consent. It is of utmost importance for to courts to understand that consent is wholly and totally a question of fact. As important and challenging is the judicial interpretation of the thin line of difference between murder and culpable homicide, so are the exceptions which render culpable homicide not amounting to murder. Thus, such a wrong and a lenient interpretation of this exception has led to faulty reasoning, and a landmark case like this that has been used as a precedent is setting wrong examples for impending cases. Moreover, studying the provisions of Section 4 of the Homicide Act, 1957, in English law, it can be ascertained that the Indian courts too shall apply the principle of burden of proof on the defendant to show that he had clear intention of dying in pursuance of the suicide pact.

REFERENCES

Dashrath Paswan v. State of Bihar, 1957 SCC Online Pat 129
Prabhat Uppal v. State, 2006 SCC Online Del 1046
Vijay v. State of M.P., (1994) 6 SCC 308

Tushar Agarwal, Revisiting Exception 5 to Section 300, SCC Online Times (July 31, 2021), https://www.scconline.com/blog/post/2021/07/31/revisiting-exception-5-to-section-300/.