[2026:RJ-JP:3978] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous Bail Application No. 15007/2025 Janak Bahadur Kathayat S/o Shri Jagat Bahadur, Aged About 34 Years, R/o Village Kailali Thikapur, Ward No. 23, District Kailali, Police Station Kailali, Nepal. At Present Tenant At A-18, Nalanda Vihar, Durgapura, Police Station Shiprapath, District Jaipur (Raj.). (At Present Confined In Central Jail, District Jaipur). ----Petitioner Versus The State Of Rajasthan, Through PP ----Respondent For Petitioner(s) : Mr. Anshuman Saxena, Adv. with Mr. Prem Prakash Bairwa, Adv. Mr. Vishal Gurjar, Adv. For Respondent(s) : Mr. Amit Punia, PP HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 28/01/2026 1. The instant bail application under Section 483 of BNSS has been filed on behalf of the petitioner, who has been arrested in connection with FIR No.801/2024 registered at Police Station Shipra Path, District Jaipur City (South) for offences punishable under Sections 103(1) and 238(a) of the Bharatiya Nyaya Sanhita, (in short ‘BNS’) 2023. After completion of investigation, Police filed charge-sheet in the matter. 2. It is contended by learned counsel for the petitioner that the accused-petitioner has falsely been implicated in this case. Counsel submits that the deceased, while in a state of severe intoxication, harassed the petitioner’s daughter and behaved indecently by exposing himself before her. Counsel submits that [2026:RJ-JP:3978] (2 of 10) [CRLMB-15007/2025] alleged incident took place in a heat of passion on sudden provocation. Counsel submits that there was no premeditation to cause death of the deceased and nothing has come on record which shows that there was prior enmity between the petitioner and deceased. Counsel further submits that even if the allegations are accepted at its face value, the provisions of Section 103 (1) are not attracted in the present case and at the best, the case would fall within the ambit of Section 105 of BNS, 2023. Counsel places reliance upon the judgment passed by the Hon’ble Supreme Court in the case of Vijay @ Vijayakumar versus State represented by Inspector of Police arising out of criminal appeal No.1049/2021. Some excerpts from the judgment is being reproduced below: “18. Exception one of Section 300 states that a culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes death of the person who gave the provocation or causes the death of any other person by mistake or accident. 19. It is well established that Exception 1 to Section 300 can apply when the accused is shown to have deprived of power of self- control by grave and sudden provocation which is caused by the person whose death has been caused. 20. It is not each and every provocation that will reduce the crime from murder to culpable homicide not amounting to murder. The provocation must be both grave and sudden. In order to invoke the benefit of the exception, it must be established that the act 6 committed by the accused was a simultaneous reaction of grave as well as sudden provocation which deprived him of the power of self control. If the provocation is grave but not sudden, [2026:RJ-JP:3978] (3 of 10) [CRLMB-15007/2025] the accused cannot get the benefit of this exception. Likewise, he cannot invoke the exception where the provocation though sudden is not grave. 21. In Mancini v. Director of Public Prosecutions reported in 1942 A.C. 1, Viscount Simon observed: “It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self control, as the result of which he commits the unlawful act which causes death. “In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind”: Stephen's Digest of the Criminal Law, art. 317. The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the Court of Criminal Appeal in Rex v. Lesbini 7, 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. In applying the test, it is of particular importance (a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger. In short, the mode of resentment must bear a [2026:RJ-JP:3978] (4 of 10) [CRLMB-15007/2025] reasonable relationship to the provocation if the offence is to be reduced to manslaughter” 22. In order to bring the case within Exception 1, the following conditions must be complied with: (i) 7 The deceased must have given provocation to the accused; (ii) The provocation must be grave; (iii) The provocation must be sudden; (iv) The offender, by reason of the side provocation, shall have been deprived of his power of self-control; (v) He should have killed the deceased during the continuance of the deprivation of the power of self control; and (vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident. 23. In other words, before Exception 1 can be invoke, the accused must establish the following circumstances: (i) there was a provocation which was both grave and sudden; (ii) such provocation had deprived the accused of his power of self-control; and (iii) whilst the accused was so deprived of his power of self-control, he had caused the death of the victim. 24. In order to bring his case under Exception 1 to Section 300 IPC the following ingredients: (i) The provocation was sudden; (ii) the provocation was grave; and (iii) loss of self-control. These three ingredients may be considered one by one: (i) Whether the provocation was sudden or not does not present much difficulty. The word ‘sudden’ involves two 8 elements. First, the provocation must be unexpected. If an accused plans in advance to receive a provocation in order to justify the subsequent homicide, the provocation cannot be said to be sudden. Secondly, the interval between the provocation and the homicide should be brief. If the [2026:RJ-JP:3978] (5 of 10) [CRLMB-15007/2025] man giving the provocation is killed within a minute after the provocation, it is a case of sudden provocation. If the man is killed six hours after the provocation, it is not a case of sudden provocation. (ii) the main difficulty lies in deciding whether a certain provocation was grave or not. A bare statement by the accused that he regarded the provocation as grave will not be accepted by the court. The court has to apply an objective test for deciding whether the provocation was grave or not. A good test for deciding whether a certain provocation was grave or not is this: “Is a reasonable man likely to lose self-control as a result of such provocation?” If the answer is in the affirmative, the provocation will be classed as grave. If the answer is in the negative, the provocation is not grave. In this context, the expression ‘reasonable man’ means a normal or an average person. A reasonable man is not the ideal man or the perfect being. A normal man sometimes loses temper. There is, therefore no inconsistency in saying that, a reasonable man may lose self-control as a result of grave provocation. A reasonable or normal or average man is a legal fiction. The reasonable man will vary from society to society. A Judge should not impose his personal standards in this matter. By 9 training, a Judge is a patient man. But the reasonable man or the normal man need not have the same standard of behaviour as the judge himself. The reasonable man under consideration is a member of the society, in which the accused was living. So, education and social conditions of the accused are relevant factors. An ordinary exchange of abuse is a matter of common occurrence. A reasonable man does not lose self- control merely on account of an ordinary exchange of abuses. So, courts do not treat an ordinary exchange of abuses as a basis for grave provocation. On the other hand, in most societies, adultery is looked upon [2026:RJ-JP:3978] (6 of 10) [CRLMB-15007/2025] as a very serious matter. So, quotes are prepared to treat adultery as a basis for grave provocation. (iii) the question of loss of self-control comes up indirectly in deciding whether a particular provocation was grave or not. So, if it is proved that the accused did receive grave and sudden provocation, the court is generally prepared to assume that homicide was committed while the accused was deprived of the power of self-control. In some cases, it may be possible for the prosecution to prove that the accused committed the murder with a cool head in spite of grave provocation. But such cases will be rare. So, when the accused has established grave and sudden provocation, the court will generally hold that he has discharged the burden that lay upon him under Exception 1 to Section 300 IPC”. 3. It is also contended that petitioner is in custody since 19.10.2024 and as such, till date, he has suffered incarceration of more than one year and three months. He contends that trial is going at a snail’s pace as till date only 6 witnesses have been examined out of 20 cited prosecution witnesses. He also contends that this delay in concluding the trial is a serious violation of the petitioner's fundamental right to a speedy trial, as guaranteed under Article 21 of the Constitution of India. The period of custody is always relevant consideration for grant of bail. When a trial gets prolonged, it is not open for the prosecution to oppose bail of the accused on the ground that the charges are very serious. 4. Per contra, learned Public Prosecutor vehemently opposes the prayer for bail. It is submitted that looking to the gravity of offence as well as the evidence which has come on record so far, [2026:RJ-JP:3978] (7 of 10) [CRLMB-15007/2025] the petitioner does not deserve indulgence of bail. He, thus, craves dismissal of the bail application. 5. Heard learned counsel for the petitioner and learned Public Prosecutor. Perused the material available on record. 6. The Supreme Court in State of Andhra Pradesh versus Rayavarapu Punnayya and Anr. reported in (1976) 4 SCC 382, while drawing a distinction between Section 302 and Section 304 of IPC held as under: "12. In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder', is 'culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, culpable homicide of the first degree. This is the gravest form of culpable homicide which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the 1st part of Section 304. Then, there is 'culpable homicide of the third degree.' This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second Part of Section 304. 21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder,' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done [2026:RJ-JP:3978] (8 of 10) [CRLMB-15007/2025] an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima jade found in the affirmative, the stage for considering the operation of Section 300, Penal Code is reached. This is [the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on. whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes, within any of the Exceptions enumerated in Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Penal Code.” 7. The Hon’ble Supreme Court in Chunni Bai versus State of Chhattisgarh, reported in AIR 2025 SC 2370, has observed that one of the criteria to determine, in any given case, as to whether the act amounts to "murder" or "culpable homicide not amounting to murder," is the presence or absence of intention of the offender. If the "intention" to cause death or to cause such bodily injury as is likely to cause death or the knowledge, which obviously has to be a conscious one, that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death and commits such act "without any excuse" [2026:RJ-JP:3978] (9 of 10) [CRLMB-15007/2025] for incurring the risk of causing death or such injury, comes out loud and clear in the case, it would be most appropriate to categorise it as a case of "murder" under Section 300 IPC in which event, penal provision of Section 302 IPC would be attracted. On the other hand, if the "intention" in causing the death or to causing such bodily injury is not so clear, the case will fall under the less stringent category of "culpable homicide not amounting to murder" as punishable under Section 304 IPC. 8. Therefore, it is the well-settled position of law that the gravity of the offence is determined by the intention or knowledge with which the act was committed. Only when the intention to cause death, or the conscious knowledge that the act is so dangerous that it is likely to cause death, is clearly established, does the case fall within the ambit of murder under Section 302 IPC. In the absence of such clear intention or knowledge, the act is treated as culpable homicide not amounting to murder and is dealt with under Section 304 IPC. 9. In the present case, the petitioner had no pre-meditation. There is nothing on record to show that the petitioner was armed or there was prior enmity between the petitioner and the deceased. The deceased while in a state of severe intoxication, harassed the petitioner’s daughter and behaved indecently by exposing himself before her. This action of the deceased flared temper in which the petitioner inflicted injuries to the deceased. 10. In backdrop of the aforesaid factual and legal aspect, especially the fact that the petitioner is in custody since 19.10.2024, as also considering the fact that there is bleak [2026:RJ-JP:3978] (10 of 10) [CRLMB-15007/2025] chances of culmination of trial in near future as 14 witnesses are yet to be examined, but without commenting anything on the merits/demerits of the case, this Court deems it just and proper to enlarge the petitioner on bail. 11. Consequently, the bail application is allowed. It is ordered that the accused-petitioner Janak Bahadur Kathayat S/o Shri Jagat Bahadur arrested in connection with FIR No.801/2024 registered at Police Station Shipra Path, District Jaipur City (South) shall be released on bail, if not wanted in any other case, provided he furnishes a personal bond of Rs.3,00,000/- and two sureties of Rs.1,50,000/- each to the satisfaction of the learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so. 12. The observations made hereinabove are only for decision of the bail application and would not have any impact on the trial of the case in any manner. (ANIL KUMAR UPMAN),J Manoj Solanki /47