Scope of Grave and Sudden Provocation as an Exception under Section 300 of Indian Penal Code
GRAVE AND SUDDEN PROVOCATION
TABLE OF CONTENTS
NTRODUCTION
It is well established that mens rea constitutes an integral part of criminal acts and are almost always kept in mind while analyzing any case and determining the quantum of punishment. The law of provocation developed in order to distinguish homicides committed ‘in sedated animo’ i.e. with settled intention from those committed in anger or heat of passion. The law makes "a concession to human frailties" in treating the latter type of homicide as one of lesser degree.1
According to the great philosopher, Aristotle, “acts proceeding from anger are rightly judged not to be done of malice aforethought; for it is not the man who acts in anger but he who enraged him that starts the mischief. Again, the matter in dispute is not whether the thing happened or not, but its justice; for it is apparent injustice that occasions rage”.2
Half the intentional killing of adult males are in a rage or a quarrel, and another 14 per cent in jealousy or revenge.3
This work seeks to study ‘culpable homicide’ and ‘murder’ as per the Indian Penal Code, 1860, in relation to the Exception of “loss of self-control due to grave and sudden provocation”. The concerned Exception is first of the five that enlist situations when culpable homicide is not murder, as provided in Section 3004 defining ‘murder’. Subsequently, the scope of this Exception as well as the conditions necessary and tests applied in such cases by the Indian courts shall be examined with the study of a few landmark and recent judgments rendered by the courts in India.
I
REDUCTION FROM MURDER TO CULPABLE HOMICIDE NOT AMOUNTING TO MURDER
Culpable Homicide and Murder are defined in the Indian Penal Code, 1860 in chapter XVI titled “Of Offences Affecting the Human Body”. Homicide is killing of human being by another human being, but the degree of criminality in each killing varies so much that in penal laws of most countries, two distinct offences, though in both there is a death of a human being, have emerged.5
Culpable Homicide
The crime of manslaughter is termed as Culpable Homicide. Homicide means the killing of a human being by another human being and culpable means ‘blameworthy’. It includes all felonious homicide not amounting to murder.
‘Culpable Homicide’ is defined under Section 299 of Indian Penal Code, 1860 as follows:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.
Murder
Murder is the unlawful killing of another human being, with malice aforethought, and generally this state of mind distinguishes murder from other forms of unlawful homicide.
Section 300 of Indian Penal Code, 1860 defines ‘Murder’ as follows:
“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows 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 for incurring the risk of causing death or such injury as aforesaid.”
If the conditions provided in clauses 1-4 of the Section are fulfilled, culpable homicide amounts to murder. However if in addition, an act falls within one of the five Exceptions also provided in the Section, then it will be culpable homicide not amounting to murder. These Exceptions are —
1. Grave and sudden provocation
2. Private defence
3. Acts of public servants
4. Sudden fight
5. Consent
Brief difference between Culpable Homicide and Murder
As put forth in the 42nd Report of Law Commission of India on Indian Penal Code, it can be said that culpable homicide is the genus and murder is its specie. All murders are culpable homicides, but all culpable homicides are not murders.6
There is a thin line between culpable homicide and murder, thus due to obscurity, where it is not possible to decide which category the act of the accused amounts to, benefit of doubt is given to the accused. It is now well-settled principle of law that if two views are possible, one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.7
The Ancient Athenian lawmaker, Draco in the 7th century BC, made the first distinction between murder and manslaughter:
“The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill – a state of mind called malice, or malice aforethought – or the knowledge that one 's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.”8
Under the Indian Penal Code, 1860, three degrees of culpable homicide have been recognised:
1. Culpable homicide of first degree- made punishable under Section 3029 (punishment for murder) with death or imprisonment for life, to either of which fine may be added.
2. Culpable homicide of second degree, which is made punishable under Part I of Section 30410 (punishment for culpable homicide not amounting to murder) with imprisonment up to a limit of 10 years, or with imprisonment for life, to either of which fine may be added.
3. Culpable homicide of third degree, which is made punishable under Part II of Section 30411 (punishment for culpable homicide not amounting to murder) with fine only, or with imprisonment up to a limit of 10 years or with both.
Now, the basic difference between culpable homicide and murder is only the difference in degrees of intention and knowledge. It is the presence of special mens rea consisting of four elements of Section 300 which make culpable homicide a murder. On the other hand, it is the presence of the conditions stated in the five Exceptions appended to the Section which can reduce the act of the accused from being a murder to a culpable homicide not amounting to murder falling under Section 299 and thus reducing the quantum of punishment inflicted by the Courts.
II
Scope of ‘Grave and Sudden Provocation’ as an Exception under Section 300 of Indian Penal Code
By provocation is meant the “act of inciting another to do something, especially to commit a crime. Something (such as words or actions) that affects a person’s reason and self-control, especially causing the person to commit a crime impulsively.”12 It is as if the person had suffered a temporary loss of control due to certain acts of another and thus committed a wrongful act in responses to such loss of control. It may be noted that exception of provocation is only available in a trial for murder, not for assaults or any other offence. It is used by the accused to plead conviction of a lesser charge or mitigation of sentence. So, this way, the accused is not punished for the crime of murder as he does not possess the proper intention and yet is not just let off for the crime committed because causing the death of a person is one of the most heinous offences.
“Provocation…here it is used not as a defence in the strict sense, namely, that, if it is successful, the accused will be found not guilty of a serious offence and guilty of a lesser offence, but as an element in the case as a whole to which the court can give its attention when deciding upon punishment.”13
Exception 1 provided under Section 300 of Indian Penal Code, 1860 is stated as follows:
“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.”
The Exception is subject to three provisos:
1. Firstly, the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Thus if the defendant set in motion the event leading to the provocation, he cannot benefit from the given Exception in case he commits murder due to such provocation.
In the case of Bhura Ram v. State of Rajasthan14, the accused along with others entered into the hut of the deceased. The deceased dreading danger to his life, fired at one of the companions of the accused and thereby caused his death. Then the accused attacked the deceased on his head using an axe. The accused pleaded that the act of the deceased killing his companion caused him sudden and grave provocation. It was decided that the accused had solicited the provocation and thus was not entitled to any relief in accordance with the first proviso to the Exception.
2. Secondly, the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
3. Thirdly, the provocation is not given by anything done in the lawful exercise of the right of private defence.
The phrase ‘grave and sudden provocation’ is not defined in the Indian Penal Code, 1860. It derives it meaning from judicial pronouncements by the courts and as stated in the Explanation appended to the Exception, it is a question of fact whether the provocation was grave and sudden enough to prevent the offence from amounting to murder. Not every kind of provocation is taken into consideration by the courts; it must be a simultaneous reaction of ‘grave’ and ‘sudden’. Where the accused was having a quarrel with his father and the deceased tried to intervene, thereafter the appellant went into his room and came with a knife and inflicted two stab injuries one on the chest and abdomen of the deceased causing his death, the Supreme court held that there was no question of sudden and grave provocation at all and the accused had committed a cruel act by assaulting the innocent intervener and convicted the accused under Section 302.15
If the provocation is grave but not sudden or sudden but not grave, the accused cannot get the benefit of the Exception.16 Recently in the case of Sukhlal Sarkar v. Union of India17, the Supreme Court laid down that 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. According to the facts, Sukhlal Sarkar was working as a constable in Border Security Force. He was convicted Under Sections 302 and 307 Indian Penal Code for the murder of his colleague Sanjay Kumar Dubey. The evidence was that "Infuriated, Sanjay Kumar Dubey slapped and pushed the accused and the accused fell down". Due to this provocation the accused opened fire from his rifle resulting in the death of Sanjay Kumar Dubey. The provocation was sudden and mild and thus does not attract the Exception.
Conversely, in Francis alias Pannan18, where the deceased had attacked the accused’s brother and brother-in-law on two previous instances and the accused was in constant fear of threat from the deceased with regard to lives and safety of his near and dear ones as a result hid himself in a compound waiting for the deceased and chased and killed him with a chopper, the provocation was in no way sudden however it was grave. It was held that although the previous incidents could not constitute sufficient provocation to reduce the crime of murder to one of culpable homicide not amounting to murder, yet, the context of the crime warranted the imposition of a lesser penalty than being sentenced to death.
On the other hand the decision in Rohidas Manik Kasrale v. State of Maharashtra19, established that the provocation caused to the accused was both sudden and grave. Here the relation between the accused and his wife was not good and the accused used to suspect the character of Lata. On the concerned night, the accused and Lata had gone to attend a meeting and they returned at 12:30 a.m. when three persons came to their house and started talking to Lata. The accused did not know them therefore, he asked her about them. Lata was annoyed over this and answered in fury 'the Appellant had no business to ask about it '. At this time the said three persons left, but a quarrel took place between the accused and Lata during which she gave a fist blow to his face. In anger, he strangulated Lata by pressing her odhni around her neck. Lata died due to the compression of throat. The Court held that the wife’s actions were ‘sufficient for the temporary loss of self-control on the part of the accused’.
The Madras High Court upheld the plea of sudden and grave provocation in Boya Munigodu v. The Queen20, wherein the accused saw deceased when she had cohabitation with his bitter enemy; he ate nothing that night and next morning he saw his wife eating along with her paramour so he killed him with a bill hook.
Adultery serves as one of the major causes of provocation to husbands. Likewise, a wife may be reasonably provoked on finding her husband in the act of adultery with another woman.21 However, the rule mitigating the crime of murder to manslaughter as regards adultery does not extend to unmarried couples such as engaged persons, divorced persons and unmarried lovers. ‘Gravity’ of Provocation
The term ‘grave’ means something serious or threatening a seriously bad outcome or involving serious issues. What constitutes a sufficiently ‘grave’ provocation? It is decided by the courts looking at the facts and circumstances of the case. It was mentioned in Mahmood’s case22:
“In inquiring whether the provocation was grave enough to provoke a person to kill, any reference to reason is irrelevant. The question involves a probe, beyond the realm of reason, into dark recesses of the human mind where lurk the turbulent passions and animal instincts of man which have been repressed by civilization but which he still finds hard to curb and get out of his control from time to time.”
It is not all provocation which 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.23 As per Khogayi24, in determining whether the provocation was so (grave), it’s admissible to take into account the condition of the mind in which the offender was at the time of provocation.
The defendant, for that moment, could be considered as not being the author of his own understanding and faculty. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the Appellant.25
Such provocation is also referred to as ‘heat of passion’ meaning ‘a state of violent and uncontrollable rage engendered by a blow’. It is a state of mind contra-distinguished from a cool state of the blood.26
“…the common law did not seek to provide a mitigatory plea in all situations of unpremeditated homicide. Consistent with its policy that even in anger, some restraint was desirable and a deterrent to ready violent be provided, it sought to restrict the types of homicide to which mitigation would be permitted by certain rules.”27 Provocation, as mentioned in Devji Govindji28, ‘is not a necessary consequence of anger or other emotion, that power of self-control should be lost.’ The case of Hansa Singh29 clearly depicts grave provocation, wherein the accused saw Gurbachan Singh, the deceased, performing an act of sodomy on his son. This naturally enraged the accused and due to loss of self-control, he killed the Gurbachan Singh. The Supreme Court set aside the decision of convicting the accused under Section 302 and instead convicted him under Section 304 as it believed that there was sufficient provocation provided by the deceased’s act. The act must have caused shock to the accused and came as a sudden distressing situation. ‘Suddenness’ of Provocation
The second requirement to avail the Exception or defence is that the provocation must be sudden along with grave. There are two elements of ‘sudden’30:
1. The provocation must be unexpected;
2. Interval between the provocation and the homicide should be brief.
So it is must that the act of the accused should be due to a provocation that took him by surprise or came out of the blue. "Sudden" means an action which must be quick and unexpected so far as to provoke the Appellant.31
If from any circumstance whatever, it appears that the party reflected, deliberated or cooled down any time before the fatal stroke was given, or if, in legal presumption, there was time or opportunity for cooling, the killing will amount to murder as being attributable to malice and revenge, rather than to human frailty.32 Though actual loss of self control is a subjective condition, the question whether the lapse of time between the provocation and the retaliatory violence was sufficient for the anger to subside has to be determined in the light of objective factors.33
In other words, since sudden can be equated to unexpected, we can say that grave and sudden means immediacy and distinguishes between cold-blooded killing from hot-blooded impulse killing.34 Killing in provocation is indeed a kind of killing in revenge, but we refrain from calling it that. The tem “revenge” is used for retaliatory action that is planned and cold-blooded.35
III
Tests and Conditions
Provocation best reflects the clash between objectivity and subjectivity in the criminal law.
It is neither reasonable nor desirable to lay down any standard with precision; it is for the court to decide in each case, having regard to the relevant circumstances.36
Yet various tests and conditions have been laid down by the courts in various cases in order to determine in a systematic way, what constitutes a grave and sudden provocation sufficient to scale down the crime of murder to culpable homicide not amounting to murder.
The Reasonable Man’s Test:
The test to be applied is that of the effect of the provocation upon a reasonable man, as was laid down by the Court of Criminal Appeal in R v Lesbini37, so that an unusually excitable or pugnacious individual is not entitled to really on provocation which would not have led an ordinary person to act as he did. A reasonable man is one having power of self-control of an ordinary man of that age and sex as that of the accused.38
In the landmark case of K M Nanavati v. State of Maharashtra39, the accused, a Naval Commander, was tried for the murder of Prem Ahuja, his wife, Sylvia Nanavati’s lover. The accused’s wife had confessed to him regarding her illicit relationship with the deceased. The accused thereafter dropped his wife and children at a cinema, went to the naval base, collected the revolver, did some official work there. Later he drove his car to the office of the deceased and later to his house and confronted him, enquiring if it was Ahuja’s intent to marry Sylvia and accept the children. Ahuja replied in the negative. It seems he “does not marry every woman he sleeps with”. The accused, not happy with the reply, shot him. By then, three hours had lapsed between his wife’s confession and his act of shooting. The defence pleaded that the accused had acted on provocation. The Greater Bombay sessions court held Nanavati not guilty. However the decision was reversed by the High Court which agreed with the prosecution 's argument that the murder was premeditated and sentenced Nanavati to life imprisonment for culpable homicide amounting to murder.
The Supreme Court upholding the decision laid down the following postulates relating to grave and sudden provocation:
1. The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be so provoked as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused, so as to bring his act within the first Exception to Section 300, IPC.
3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
First test: If we examine the words “belonging to the same class of society as the accused”, we can conclude that the Indian courts have gone much further than their Western counterparts in subjectivising the ordinary person test. Ordinarily, the reasonable man’s test takes into account the age and mental level criteria while comparing the conduct of the accused with that of an ordinary or reasonable person. However, in the Indian scenario, social background of the accused is also kept in consideration. Thus a particular characteristic of an accused may be relevant both in assessing an ordinary person 's power of self-control and in gauging the seriousness of the provocation towards her or him. The clearest example of this is to be found in cases involving an accused 's ethnic or cultural origin. This ideology was put forth in the leading case of Nanavati40 in the following way:
“Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.: in short, the cultural, social and emotional background of the society to which an accused belongs.”
The same was observed in a comparatively recent case of Jamtu Majhi v. State of Orissa, wherein the Court recognised the accused’s ethnic background for assessing the power of self-control of an ordinary person of the same background and noted that the accused belonged to the "adivasis" who "are a class, comparatively more volatile and more prone to lose their self-control on slightest provocation". It should be observed that the Indian courts recognise only the level of self-control of a whole class of ordinary people of a particular ethnicity.41 Accordingly, while the ordinary person test under Indian law permits a greater amount of subjectivity, it still retains the quality of objectivity by requiring the characteristic in question to be commonly shared by a whole group of ordinary people.42
Court shall give due regard to age and antecedent of accused, while passing order of sentence.43
Second test: In relation to this the apex court has laid down that in India provocation may be through words and gestures. It was mentioned in Gura Singh v. State of Rajasthan44 that “it is true that at times words and gestures may under certain circumstances cause grave and sudden provocation. The provocation is an external stimulus which should be objectively gained.” However it was also added that “merely uttering abusive words would not amount to grave and sudden provocation.” 'It is an indisputable fact, that gross insults by word or gesture have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but a proof that he is a man of peculiarly bad heart. '45
The authority in this sphere is Abdul Majid v. State of Madhya Pradesh46. In this case, there was a quarrel between the accused and the deceased over flowing of drain water into the graveyard which was adjacent to the house of the accused. The deceased, who was a 'Fakir ', objected to it while the accused resented his intervention. The deceased had made an insinuating reference to the pigeon incident which was construed to suggest that the accused had sexually misbehaved with his pigeon. As per evidence the deceased was hurling filthy abuses at the accused consequently provoking the accused, who went into his house, came out with a spear and hit the deceased with it. The court applying the reasonable man’s test decided that the Exception applies here. “It would be a grave provocation, because it would have been a very serious aspersion on the character of the accused-appellant, and it would also have been sudden because in the midst of abuses, when due to frayed tempers abuses were being hurled by the parties on each other, the accused-appellant could not have expected that the deceased would then make such a scurrilous suggestion when the dispute between them was relating to the flow of household dirty water through a drain leading towards the graveyard.”
If mere words or gestures can cause grave provocation, there can be no manner of doubt that its possibility will be all the more, if filthy abuses are hurled.47 This was a case involving a sudden fight and it was stated that ‘if the possibility of Ranjeet uttering filthy abuses to Mansa Ram first cannot be ruled out, the latter could have grave provocation to deliver the knife blow to Ranjeet’ and the conviction of Mansa Ram under Section 302, I.P.C. and the sentence of life imprisonment passed were set aside and he was instead convicted under Section 304, Part I, I.P.C.
In another case of Panchu Lal48, the deceased derided accused about his caste, who reacted to this ridicule. Suddenly, the conversion turned into a barrage of curse words and insults. Deceased slapped Panchu Lal and called him names. Thereupon, accused pulled out a knife and struck deceased. “It was only because of a grave and sudden provocation, given by deceased that Appellant reacted. Therefore, the case of Appellant falls within first exception of Section 300 Indian Penal Code.”
The final discretion lies with the Court which applies the tests laid down to decide the matter.
Third test: It can be said that the prior course of relationship between the accused and the deceased had been considered relevant not only in dispensing with the requirement of suddenness but also in assessing the gravity of provocation. However the courts use this condition very cautiously as can be seen from the case of Vairana Pillai49.
This involves a situation where there is a series of provocation where the last insult may appear trivial when viewed in isolation and on its own, but the last insult which when viewed against the cumulative provocation bring events to a boiling point.50 The jury may take into account actions over a period of time.51 Criminologists have recognised that a distinction must be made between a carefully planned murder motivated by reasons of gain or revenge and a homicide which an offender resorts to as an ultimate release from the strain imposed by the relationship with the deceased.52
Constant harassment by throwing garbage and rubbish into one’s shop/home may lead to grave and sudden provocation resulting in deprivation of self control.53
Fourth test: It refers to the existence of a clear link between the fatal blow and influence of passion from provocation and not subsequent to cooling down by lapse of time. This can be understood from the case of Dattu Genu Gaikwad v. State of Maharashtra54 wherein the accused contended that he killed the deceased because he had tried to outrage the modesty of his wife a month ago. In this case that the interval between the act referred to and the killing was too long and it was held that the plea of ‘sudden and grave’ provocation was not available.
In Guru Dev Singh55, which was recently decided, sudden and grave provocation was not established. On the other hand, the accused himself was armed beforehand suggesting premeditation. The facts were that Bhola Singh (deceased) and Sukhdev Singh had gone to Janakpur and on route they met, Gurudev and two others armed with different weapons. The deceased and the accused had enmity towards each other and because of that the accused persons attacked Bhola Singh and Sukhdev Singh. As a result of the injuries Bhola Singh died. It was held that defence of accused that his case was covered under one of Exceptions to Section 300 was not corroborated by evidence on record. Link between the attack and provocation could not be made. The attack was initiated due to some past incident and sufficient time had elapsed since.
Other conditions
Intoxication: Likewise, the intentional killing may not be reduced to voluntary manslaughter where, because of intoxication, he loses self control; that is to say, he is to be judged by the standard of a reasonable sober man. The test is usually how the victim’s action affects a reasonable person, not how it affects a person with the defendant’s physical characteristics.56
In the case Girja Devi alias Gita Devi v. State of Himachal Pradesh57, the accused’s husband, used to consume liquor all the time and beat her. On the night of the killing, the deceased had come home drunk and had started kicking his wife as soon as he entered the house. She brought food for him which he refused to take and then he stripped her. He had sex with her in the natural way and then beat her up. Thereafter, he directed her perform oral sex and she refused. He insisted again and said if she did not do so he would kill her and their son. He tried to put his organ forcibly into her mouth and took 'Darat ' in his hands and threatened to kill. The accused got hold of a sickle and killed him. The accused “wanted to satisfy his perverted lust on his helpless wife” and his acts were certainly of such gravity as to cause provocation to the accused and as he suddenly forced his way into her mouth and threatened her with death, who lost her self-control and without any time-lag or before cooling down, proceeded to kill him. The court had thus applied the reasonable man’s test and judged accordingly entitling the accused to the first Exception of Section 300.
Reasonable retaliation: In some cases, whether the homicide is reduced from murder to voluntary manslaughter may depend on the kind of weapon used in response to the provocation; for example, where the provoker used a light blow with a fist on the defendant, the defendant may not in retaliation, use a dagger in response to the light blow and have his homicide reduced to voluntary manslaughter; since the use of dagger constitutes excessive force.58 This is also imbibed in the general rule of private defence wherein the individual is only supposed to use as much force as is necessary for the purpose of defending self.
However the approach taken by these Indian decisions denies any foothold to the ‘reasonable retaliation rule’ and thereby brings the law into accord with human reality. As Beg J in Akhtar v. State of Uttar Pradesh59 asserts, “it is futile to apply any yardstick of reasonableness to an accused 's behaviour performed whilst he or she was deprived of self-control. Whether an ordinary person could have killed under similar provocation as the accused, let alone killed in precisely the same way as the accused, is surely a matter of pure conjecture. After all, the human reality is that while ordinary people may frequently lose their self-control, they very rarely kill, and if this fact were to be strictly accounted for by the courts, the defence of provocation would almost never succeed."60 The role of the ordinary person 's power of self-control should therefore be limited to the point in time preceding to the accused 's loss of self-control so that the question to ask is whether an ordinary person confronted with the same provocation as the accused could have lost self-control.
Provocation distinguished from Private Defence and Sudden Fight
Sudden fight v. grave and sudden provocation
It may also be noted that grave and sudden provocation may be distinguished from sudden fight given under Exception 4. The scope of Exception 1 is much wider compared to the latter. Both Exceptions entail an element of suddenness and though a sudden fight may cause provocation however, Exception 1 incorporates various kinds of provocation and it must be unilateral i.e. provocation must be flowing from one side which causes the accused (other side) to lose control. On the other hand, a sudden fight involves input from both sides and the onus cannot be laid upon one side. “There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 to Section 300, I.P.C. can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender 's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found.”61
Private defence v. grave and sudden provocation
Exception 2 to Section 300 lays down the defence of private defence which negatives the offence of murder and instead the accused is convicted for culpable homicide not amounting to murder. Private defence is undertaken when the person is in danger from the person against whom it is exercised. It is different from Exception 1 and its scope is comparatively narrow. While Exception 2 suggests an accusative tone, and can be applied only when the person or somebody close to him is actually in danger. Grave and sudden provocation can be caused due to numerous acts of a person and need not cause immediate danger to the accused. "No one is entitled to avail the benefit of his right as envisaged under Section 10062 unless; there is grave and sudden provocation from deceased."63
CONCLUSION
It can be concluded from the rulings that all cases in favour of the accused necessarily fulfill a few basic conditions in order to reduce the offence from Section 302 to Section 304, namely, provocation that is grave and sudden, which necessarily causes the accused to lose self-control, and the retaliation is done prior to cooling down. The courts apply the test of ‘reasonable man’ in order to adjudicate along with other principles laid down in landmark judgments. If abovementioned conditions not satisfied, accused is convicted for the graver offence of murder punishable by Section 302.
The test of a reasonable man or ordinary person is in fact subjectivised in the Indian scenario as it takes into account certain characteristics of the accused such as ethnicity which brings the law closer to human veracity and renders greater degree of justice or rather expands the scope of justice.
An intricate situation arises if it is required, while considering the reasonable man’s test, that the reasonable man lose self-control to the extent of killing akin to how the accused did in order for the accused to establish his defence. This creates a dilemma because it is ordinary for people to lose self-control however they do not kill save in rare cases, let alone kill in the same way as the accused. This can be overcome by only examining whether a reasonable man in the accused’s place would have committed the offence of killing and not whether he would have done so similarly.
Therefore, it is an arduous task for the courts to determine whether the accused should be allowed the reduction of the offence from murder to culpable homicide not amounting to murder and such a task is profoundly dependent on the particular facts and circumstances of each case and the mens rea involved in the mind of each offender.
In case of sudden and grave provocation, the accused does not have authority over his own actions and thus such an Exception is certainly a requisite one with regard to severe offence of killing a human being to protect such accused person to a certain extent and yet punish the grave crime.
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9. K. D. Gaur, Criminal Law: Cases and Materials, (New Delhi: Lexis Nexis Butterworths, 5th Ed., 2008)
Articles:
1. Stanley M.H. Yeo, Lessons on Provocation from Indian Penal Code, The International and Comparative Law Quarterly, Vol. 41, No. 3 (Jul. 1992), p. 615-631.
2. J.A. Illife, Provocation in Homicide and Assault Cases: The Common Law and Criminal Codes, The International and Comparative Law Quarterly, Vol. 3, No. 1 (Jan., 1954), p. 23-48
3. M. Sornarajah, Commonwealth Innovations on the Law of Provocation, The International and Comparative Law Quarterly, Vol. 24, No. 2 (Apr., 1975), p. 184-204
Websites:
1. http://legalservicesindia.com/article/article/culpable-homicide-582-1.html
2. http://manupatrafast.com
3. http://thelawdictionary.org
4. http://www.jstor.org/
5. http://westlaw.com
6. http://www.ilt.columbia.edu/publications/Projects/digitexts/aristotle/nicomachean_ethics/book05.html
7. http://sixthformlaw.info/01_modules/mod3a/3_31_voluntary/04_provocation.htm
8. http://san0670.wordpress.com/tag/mancini-v-director-of-public-prosecutions/
Cases:
1. Hayward (1833) 6 C. & P. 157
2. Raghunath v. State of Haryana, AIR 2003 SC 165
3. Bhura Ram v. State of Rajasthan, (2003) 9 SCC 205
4. Mannam Balaswamy v. State of Andhra Pradesh, AIR 1980 SC 448
5. Mancini v. Director of Public Prosecutions, 1942 AC 1
6. Sukhlal Sarkar v. Union of India, 2012 (4) SCALE 599
7. Francis alias Pannan v. State of Kerala, 1975 SCR (1) 485
8. Rohidas Manik Kasrale v. State of Maharashtra, 2012 (114) Bom LR 203
9. Boya Munigodu v. The Queen, ILR 3 Mad 33
10. Scroggs v. State, 94 Ga. App. 28 (1956)
11. Mahmood v. State, AIR 1961 All 538
12. Empress v. Khogayi, (1879) I.L.R. 2 Mad 122
13. Sukhlal Sarkar v. Union of India, 2012 (4) SCALE 599
14. Queen-Empress v. Devji Govindji, (1895) I.L.R. 20 Bom 215
15. Hansa Singh v. State of Punjab, AIR 1977 SC 1801
16. R v. Thomas, (1837) 7 C & P 817
17. Onbey, 2 LR 1485
18. R v. Lesbini, (1914), 11 Cr. App. R. 7
19. Director of Public Prosecutions v. Camplin, (1978) 2 All ER 168 (HL)
20. KM Nanavati v. State of Maharashtra, AIR 1962 SC 605
21. Lokesh v. The State rep. by Inspector of Police rep. by State Public Prosecutor, Criminal Appeal No-669/2007, Decided On: 16.09.2011
22. Gura Singh v. State of Rajasthan, (1984) Cri LJ 1423
23. Abdul Majid v. State of Madhya Pradesh, AIR 1963 MP 364
24. Mansa Ram v. State, 1975 CriLJ 1772
25. Panchu Lal v. State of Rajasthan, 2006 (3) WLC 707
26. In Re, Vairana Pillai, (1966) Cri LJ 222
27. R v. Ahluwalia, (1992) 4 All ER 889
28. Muthu v. State of Tamil Nadu, (2007) 7 Supreme, 547
29. Dattu Genu Gaikwad v. State of Maharashtra, AIR 1974 SC 387
30. Guru Dev Singh v. State of Madhya Pradesh, (2011) 5 SCC 721
31. Bedder v. Director of Public Prosecutions, (1954) 1 WLR 1116
32. Girja Devi alias Gita Devi v. State of Himachal Pradesh, 2000 Cri LJ 1528
33. Mancini v. Director of Public Prosecutions, 1942 AC 1
34. Akhtar v. State of Uttar Pradesh, AIR 1964 All 262
35. Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653
36. Raghavan Achari and Njoonjappan v. State of Kerala, AIR 1993 SC 203
Bibliography: 2. Ratanlal & Dhirajlal, The Indian Penal Code, (Nagpur: Wadhwa & Company, 28th Edition Reprint, 2002) 3 4. P.M. Bakshi (ed.), Law of Crimes: Exhaustive Commentary on India Penal Code, 1860, (India Law House, Vol. 2, 5th Edition, 2001) 5 6. Evelyn Gibson, Homicide in England and Wales 1967-71 (Home Office Research Studies, 31, 1975) 7 8. Glanville Williams, Textbook of Criminal Law, (New Delhi: Universal Law Publishing Co., 2nd Ed., 2012) 9 2. J.A. Illife, Provocation in Homicide and Assault Cases: The Common Law and Criminal Codes, The International and Comparative Law Quarterly, Vol. 3, No. 1 (Jan., 1954), p. 23-48 3 1. Hayward (1833) 6 C. & P. 157 2 3. Bhura Ram v. State of Rajasthan, (2003) 9 SCC 205 4 5. Mancini v. Director of Public Prosecutions, 1942 AC 1 6 7. Francis alias Pannan v. State of Kerala, 1975 SCR (1) 485 8 13. Sukhlal Sarkar v. Union of India, 2012 (4) SCALE 599 14 19. Director of Public Prosecutions v. Camplin, (1978) 2 All ER 168 (HL) 20 25. Panchu Lal v. State of Rajasthan, 2006 (3) WLC 707 26 27. R v. Ahluwalia, (1992) 4 All ER 889 28 31. Bedder v. Director of Public Prosecutions, (1954) 1 WLR 1116 32 33. Mancini v. Director of Public Prosecutions, 1942 AC 1 34 35. Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 36
TABLE OF CONTENTS
NTRODUCTION
It is well established that mens rea constitutes an integral part of criminal acts and are almost always kept in mind while analyzing any case and determining the quantum of punishment. The law of provocation developed in order to distinguish homicides committed ‘in sedated animo’ i.e. with settled intention from those committed in anger or heat of passion. The law makes "a concession to human frailties" in treating the latter type of homicide as one of lesser degree.1
According to the great philosopher, Aristotle, “acts proceeding from anger are rightly judged not to be done of malice aforethought; for it is not the man who acts in anger but he who enraged him that starts the mischief. Again, the matter in dispute is not whether the thing happened or not, but its justice; for it is apparent injustice that occasions rage”.2
Half the intentional killing of adult males are in a rage or a quarrel, and another 14 per cent in jealousy or revenge.3
This work seeks to study ‘culpable homicide’ and ‘murder’ as per the Indian Penal Code, 1860, in relation to the Exception of “loss of self-control due to grave and sudden provocation”. The concerned Exception is first of the five that enlist situations when culpable homicide is not murder, as provided in Section 3004 defining ‘murder’. Subsequently, the scope of this Exception as well as the conditions necessary and tests applied in such cases by the Indian courts shall be examined with the study of a few landmark and recent judgments rendered by the courts in India.
I
REDUCTION FROM MURDER TO CULPABLE HOMICIDE NOT AMOUNTING TO MURDER
Culpable Homicide and Murder are defined in the Indian Penal Code, 1860 in chapter XVI titled “Of Offences Affecting the Human Body”. Homicide is killing of human being by another human being, but the degree of criminality in each killing varies so much that in penal laws of most countries, two distinct offences, though in both there is a death of a human being, have emerged.5
Culpable Homicide
The crime of manslaughter is termed as Culpable Homicide. Homicide means the killing of a human being by another human being and culpable means ‘blameworthy’. It includes all felonious homicide not amounting to murder.
‘Culpable Homicide’ is defined under Section 299 of Indian Penal Code, 1860 as follows:
“Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.
Murder
Murder is the unlawful killing of another human being, with malice aforethought, and generally this state of mind distinguishes murder from other forms of unlawful homicide.
Section 300 of Indian Penal Code, 1860 defines ‘Murder’ as follows:
“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.--If the person committing the act knows 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 for incurring the risk of causing death or such injury as aforesaid.”
If the conditions provided in clauses 1-4 of the Section are fulfilled, culpable homicide amounts to murder. However if in addition, an act falls within one of the five Exceptions also provided in the Section, then it will be culpable homicide not amounting to murder. These Exceptions are —
1. Grave and sudden provocation
2. Private defence
3. Acts of public servants
4. Sudden fight
5. Consent
Brief difference between Culpable Homicide and Murder
As put forth in the 42nd Report of Law Commission of India on Indian Penal Code, it can be said that culpable homicide is the genus and murder is its specie. All murders are culpable homicides, but all culpable homicides are not murders.6
There is a thin line between culpable homicide and murder, thus due to obscurity, where it is not possible to decide which category the act of the accused amounts to, benefit of doubt is given to the accused. It is now well-settled principle of law that if two views are possible, one in favour of the accused and the other adversely against it, the view favouring the accused must be accepted.7
The Ancient Athenian lawmaker, Draco in the 7th century BC, made the first distinction between murder and manslaughter:
“The law generally differentiates between levels of criminal culpability based on the mens rea, or state of mind. This is particularly true within the law of homicide, where murder requires either the intent to kill – a state of mind called malice, or malice aforethought – or the knowledge that one 's actions are likely to result in death; manslaughter, on the other hand, requires a lack of any prior intention to kill or create a deadly situation.”8
Under the Indian Penal Code, 1860, three degrees of culpable homicide have been recognised:
1. Culpable homicide of first degree- made punishable under Section 3029 (punishment for murder) with death or imprisonment for life, to either of which fine may be added.
2. Culpable homicide of second degree, which is made punishable under Part I of Section 30410 (punishment for culpable homicide not amounting to murder) with imprisonment up to a limit of 10 years, or with imprisonment for life, to either of which fine may be added.
3. Culpable homicide of third degree, which is made punishable under Part II of Section 30411 (punishment for culpable homicide not amounting to murder) with fine only, or with imprisonment up to a limit of 10 years or with both.
Now, the basic difference between culpable homicide and murder is only the difference in degrees of intention and knowledge. It is the presence of special mens rea consisting of four elements of Section 300 which make culpable homicide a murder. On the other hand, it is the presence of the conditions stated in the five Exceptions appended to the Section which can reduce the act of the accused from being a murder to a culpable homicide not amounting to murder falling under Section 299 and thus reducing the quantum of punishment inflicted by the Courts.
II
Scope of ‘Grave and Sudden Provocation’ as an Exception under Section 300 of Indian Penal Code
By provocation is meant the “act of inciting another to do something, especially to commit a crime. Something (such as words or actions) that affects a person’s reason and self-control, especially causing the person to commit a crime impulsively.”12 It is as if the person had suffered a temporary loss of control due to certain acts of another and thus committed a wrongful act in responses to such loss of control. It may be noted that exception of provocation is only available in a trial for murder, not for assaults or any other offence. It is used by the accused to plead conviction of a lesser charge or mitigation of sentence. So, this way, the accused is not punished for the crime of murder as he does not possess the proper intention and yet is not just let off for the crime committed because causing the death of a person is one of the most heinous offences.
“Provocation…here it is used not as a defence in the strict sense, namely, that, if it is successful, the accused will be found not guilty of a serious offence and guilty of a lesser offence, but as an element in the case as a whole to which the court can give its attention when deciding upon punishment.”13
Exception 1 provided under Section 300 of Indian Penal Code, 1860 is stated as follows:
“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.”
The Exception is subject to three provisos:
1. Firstly, the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Thus if the defendant set in motion the event leading to the provocation, he cannot benefit from the given Exception in case he commits murder due to such provocation.
In the case of Bhura Ram v. State of Rajasthan14, the accused along with others entered into the hut of the deceased. The deceased dreading danger to his life, fired at one of the companions of the accused and thereby caused his death. Then the accused attacked the deceased on his head using an axe. The accused pleaded that the act of the deceased killing his companion caused him sudden and grave provocation. It was decided that the accused had solicited the provocation and thus was not entitled to any relief in accordance with the first proviso to the Exception.
2. Secondly, the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
3. Thirdly, the provocation is not given by anything done in the lawful exercise of the right of private defence.
The phrase ‘grave and sudden provocation’ is not defined in the Indian Penal Code, 1860. It derives it meaning from judicial pronouncements by the courts and as stated in the Explanation appended to the Exception, it is a question of fact whether the provocation was grave and sudden enough to prevent the offence from amounting to murder. Not every kind of provocation is taken into consideration by the courts; it must be a simultaneous reaction of ‘grave’ and ‘sudden’. Where the accused was having a quarrel with his father and the deceased tried to intervene, thereafter the appellant went into his room and came with a knife and inflicted two stab injuries one on the chest and abdomen of the deceased causing his death, the Supreme court held that there was no question of sudden and grave provocation at all and the accused had committed a cruel act by assaulting the innocent intervener and convicted the accused under Section 302.15
If the provocation is grave but not sudden or sudden but not grave, the accused cannot get the benefit of the Exception.16 Recently in the case of Sukhlal Sarkar v. Union of India17, the Supreme Court laid down that 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. According to the facts, Sukhlal Sarkar was working as a constable in Border Security Force. He was convicted Under Sections 302 and 307 Indian Penal Code for the murder of his colleague Sanjay Kumar Dubey. The evidence was that "Infuriated, Sanjay Kumar Dubey slapped and pushed the accused and the accused fell down". Due to this provocation the accused opened fire from his rifle resulting in the death of Sanjay Kumar Dubey. The provocation was sudden and mild and thus does not attract the Exception.
Conversely, in Francis alias Pannan18, where the deceased had attacked the accused’s brother and brother-in-law on two previous instances and the accused was in constant fear of threat from the deceased with regard to lives and safety of his near and dear ones as a result hid himself in a compound waiting for the deceased and chased and killed him with a chopper, the provocation was in no way sudden however it was grave. It was held that although the previous incidents could not constitute sufficient provocation to reduce the crime of murder to one of culpable homicide not amounting to murder, yet, the context of the crime warranted the imposition of a lesser penalty than being sentenced to death.
On the other hand the decision in Rohidas Manik Kasrale v. State of Maharashtra19, established that the provocation caused to the accused was both sudden and grave. Here the relation between the accused and his wife was not good and the accused used to suspect the character of Lata. On the concerned night, the accused and Lata had gone to attend a meeting and they returned at 12:30 a.m. when three persons came to their house and started talking to Lata. The accused did not know them therefore, he asked her about them. Lata was annoyed over this and answered in fury 'the Appellant had no business to ask about it '. At this time the said three persons left, but a quarrel took place between the accused and Lata during which she gave a fist blow to his face. In anger, he strangulated Lata by pressing her odhni around her neck. Lata died due to the compression of throat. The Court held that the wife’s actions were ‘sufficient for the temporary loss of self-control on the part of the accused’.
The Madras High Court upheld the plea of sudden and grave provocation in Boya Munigodu v. The Queen20, wherein the accused saw deceased when she had cohabitation with his bitter enemy; he ate nothing that night and next morning he saw his wife eating along with her paramour so he killed him with a bill hook.
Adultery serves as one of the major causes of provocation to husbands. Likewise, a wife may be reasonably provoked on finding her husband in the act of adultery with another woman.21 However, the rule mitigating the crime of murder to manslaughter as regards adultery does not extend to unmarried couples such as engaged persons, divorced persons and unmarried lovers. ‘Gravity’ of Provocation
The term ‘grave’ means something serious or threatening a seriously bad outcome or involving serious issues. What constitutes a sufficiently ‘grave’ provocation? It is decided by the courts looking at the facts and circumstances of the case. It was mentioned in Mahmood’s case22:
“In inquiring whether the provocation was grave enough to provoke a person to kill, any reference to reason is irrelevant. The question involves a probe, beyond the realm of reason, into dark recesses of the human mind where lurk the turbulent passions and animal instincts of man which have been repressed by civilization but which he still finds hard to curb and get out of his control from time to time.”
It is not all provocation which 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.23 As per Khogayi24, in determining whether the provocation was so (grave), it’s admissible to take into account the condition of the mind in which the offender was at the time of provocation.
The defendant, for that moment, could be considered as not being the author of his own understanding and faculty. The expression "grave" indicate that provocation be of such a nature so as to give cause for alarm to the Appellant.25
Such provocation is also referred to as ‘heat of passion’ meaning ‘a state of violent and uncontrollable rage engendered by a blow’. It is a state of mind contra-distinguished from a cool state of the blood.26
“…the common law did not seek to provide a mitigatory plea in all situations of unpremeditated homicide. Consistent with its policy that even in anger, some restraint was desirable and a deterrent to ready violent be provided, it sought to restrict the types of homicide to which mitigation would be permitted by certain rules.”27 Provocation, as mentioned in Devji Govindji28, ‘is not a necessary consequence of anger or other emotion, that power of self-control should be lost.’ The case of Hansa Singh29 clearly depicts grave provocation, wherein the accused saw Gurbachan Singh, the deceased, performing an act of sodomy on his son. This naturally enraged the accused and due to loss of self-control, he killed the Gurbachan Singh. The Supreme Court set aside the decision of convicting the accused under Section 302 and instead convicted him under Section 304 as it believed that there was sufficient provocation provided by the deceased’s act. The act must have caused shock to the accused and came as a sudden distressing situation. ‘Suddenness’ of Provocation
The second requirement to avail the Exception or defence is that the provocation must be sudden along with grave. There are two elements of ‘sudden’30:
1. The provocation must be unexpected;
2. Interval between the provocation and the homicide should be brief.
So it is must that the act of the accused should be due to a provocation that took him by surprise or came out of the blue. "Sudden" means an action which must be quick and unexpected so far as to provoke the Appellant.31
If from any circumstance whatever, it appears that the party reflected, deliberated or cooled down any time before the fatal stroke was given, or if, in legal presumption, there was time or opportunity for cooling, the killing will amount to murder as being attributable to malice and revenge, rather than to human frailty.32 Though actual loss of self control is a subjective condition, the question whether the lapse of time between the provocation and the retaliatory violence was sufficient for the anger to subside has to be determined in the light of objective factors.33
In other words, since sudden can be equated to unexpected, we can say that grave and sudden means immediacy and distinguishes between cold-blooded killing from hot-blooded impulse killing.34 Killing in provocation is indeed a kind of killing in revenge, but we refrain from calling it that. The tem “revenge” is used for retaliatory action that is planned and cold-blooded.35
III
Tests and Conditions
Provocation best reflects the clash between objectivity and subjectivity in the criminal law.
It is neither reasonable nor desirable to lay down any standard with precision; it is for the court to decide in each case, having regard to the relevant circumstances.36
Yet various tests and conditions have been laid down by the courts in various cases in order to determine in a systematic way, what constitutes a grave and sudden provocation sufficient to scale down the crime of murder to culpable homicide not amounting to murder.
The Reasonable Man’s Test:
The test to be applied is that of the effect of the provocation upon a reasonable man, as was laid down by the Court of Criminal Appeal in R v Lesbini37, so that an unusually excitable or pugnacious individual is not entitled to really on provocation which would not have led an ordinary person to act as he did. A reasonable man is one having power of self-control of an ordinary man of that age and sex as that of the accused.38
In the landmark case of K M Nanavati v. State of Maharashtra39, the accused, a Naval Commander, was tried for the murder of Prem Ahuja, his wife, Sylvia Nanavati’s lover. The accused’s wife had confessed to him regarding her illicit relationship with the deceased. The accused thereafter dropped his wife and children at a cinema, went to the naval base, collected the revolver, did some official work there. Later he drove his car to the office of the deceased and later to his house and confronted him, enquiring if it was Ahuja’s intent to marry Sylvia and accept the children. Ahuja replied in the negative. It seems he “does not marry every woman he sleeps with”. The accused, not happy with the reply, shot him. By then, three hours had lapsed between his wife’s confession and his act of shooting. The defence pleaded that the accused had acted on provocation. The Greater Bombay sessions court held Nanavati not guilty. However the decision was reversed by the High Court which agreed with the prosecution 's argument that the murder was premeditated and sentenced Nanavati to life imprisonment for culpable homicide amounting to murder.
The Supreme Court upholding the decision laid down the following postulates relating to grave and sudden provocation:
1. The test of ‘grave and sudden’ provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed, would be so provoked as to lose his self-control.
2. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused, so as to bring his act within the first Exception to Section 300, IPC.
3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.
First test: If we examine the words “belonging to the same class of society as the accused”, we can conclude that the Indian courts have gone much further than their Western counterparts in subjectivising the ordinary person test. Ordinarily, the reasonable man’s test takes into account the age and mental level criteria while comparing the conduct of the accused with that of an ordinary or reasonable person. However, in the Indian scenario, social background of the accused is also kept in consideration. Thus a particular characteristic of an accused may be relevant both in assessing an ordinary person 's power of self-control and in gauging the seriousness of the provocation towards her or him. The clearest example of this is to be found in cases involving an accused 's ethnic or cultural origin. This ideology was put forth in the leading case of Nanavati40 in the following way:
“Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden" provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.: in short, the cultural, social and emotional background of the society to which an accused belongs.”
The same was observed in a comparatively recent case of Jamtu Majhi v. State of Orissa, wherein the Court recognised the accused’s ethnic background for assessing the power of self-control of an ordinary person of the same background and noted that the accused belonged to the "adivasis" who "are a class, comparatively more volatile and more prone to lose their self-control on slightest provocation". It should be observed that the Indian courts recognise only the level of self-control of a whole class of ordinary people of a particular ethnicity.41 Accordingly, while the ordinary person test under Indian law permits a greater amount of subjectivity, it still retains the quality of objectivity by requiring the characteristic in question to be commonly shared by a whole group of ordinary people.42
Court shall give due regard to age and antecedent of accused, while passing order of sentence.43
Second test: In relation to this the apex court has laid down that in India provocation may be through words and gestures. It was mentioned in Gura Singh v. State of Rajasthan44 that “it is true that at times words and gestures may under certain circumstances cause grave and sudden provocation. The provocation is an external stimulus which should be objectively gained.” However it was also added that “merely uttering abusive words would not amount to grave and sudden provocation.” 'It is an indisputable fact, that gross insults by word or gesture have as great a tendency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult more than a wound is anything but a proof that he is a man of peculiarly bad heart. '45
The authority in this sphere is Abdul Majid v. State of Madhya Pradesh46. In this case, there was a quarrel between the accused and the deceased over flowing of drain water into the graveyard which was adjacent to the house of the accused. The deceased, who was a 'Fakir ', objected to it while the accused resented his intervention. The deceased had made an insinuating reference to the pigeon incident which was construed to suggest that the accused had sexually misbehaved with his pigeon. As per evidence the deceased was hurling filthy abuses at the accused consequently provoking the accused, who went into his house, came out with a spear and hit the deceased with it. The court applying the reasonable man’s test decided that the Exception applies here. “It would be a grave provocation, because it would have been a very serious aspersion on the character of the accused-appellant, and it would also have been sudden because in the midst of abuses, when due to frayed tempers abuses were being hurled by the parties on each other, the accused-appellant could not have expected that the deceased would then make such a scurrilous suggestion when the dispute between them was relating to the flow of household dirty water through a drain leading towards the graveyard.”
If mere words or gestures can cause grave provocation, there can be no manner of doubt that its possibility will be all the more, if filthy abuses are hurled.47 This was a case involving a sudden fight and it was stated that ‘if the possibility of Ranjeet uttering filthy abuses to Mansa Ram first cannot be ruled out, the latter could have grave provocation to deliver the knife blow to Ranjeet’ and the conviction of Mansa Ram under Section 302, I.P.C. and the sentence of life imprisonment passed were set aside and he was instead convicted under Section 304, Part I, I.P.C.
In another case of Panchu Lal48, the deceased derided accused about his caste, who reacted to this ridicule. Suddenly, the conversion turned into a barrage of curse words and insults. Deceased slapped Panchu Lal and called him names. Thereupon, accused pulled out a knife and struck deceased. “It was only because of a grave and sudden provocation, given by deceased that Appellant reacted. Therefore, the case of Appellant falls within first exception of Section 300 Indian Penal Code.”
The final discretion lies with the Court which applies the tests laid down to decide the matter.
Third test: It can be said that the prior course of relationship between the accused and the deceased had been considered relevant not only in dispensing with the requirement of suddenness but also in assessing the gravity of provocation. However the courts use this condition very cautiously as can be seen from the case of Vairana Pillai49.
This involves a situation where there is a series of provocation where the last insult may appear trivial when viewed in isolation and on its own, but the last insult which when viewed against the cumulative provocation bring events to a boiling point.50 The jury may take into account actions over a period of time.51 Criminologists have recognised that a distinction must be made between a carefully planned murder motivated by reasons of gain or revenge and a homicide which an offender resorts to as an ultimate release from the strain imposed by the relationship with the deceased.52
Constant harassment by throwing garbage and rubbish into one’s shop/home may lead to grave and sudden provocation resulting in deprivation of self control.53
Fourth test: It refers to the existence of a clear link between the fatal blow and influence of passion from provocation and not subsequent to cooling down by lapse of time. This can be understood from the case of Dattu Genu Gaikwad v. State of Maharashtra54 wherein the accused contended that he killed the deceased because he had tried to outrage the modesty of his wife a month ago. In this case that the interval between the act referred to and the killing was too long and it was held that the plea of ‘sudden and grave’ provocation was not available.
In Guru Dev Singh55, which was recently decided, sudden and grave provocation was not established. On the other hand, the accused himself was armed beforehand suggesting premeditation. The facts were that Bhola Singh (deceased) and Sukhdev Singh had gone to Janakpur and on route they met, Gurudev and two others armed with different weapons. The deceased and the accused had enmity towards each other and because of that the accused persons attacked Bhola Singh and Sukhdev Singh. As a result of the injuries Bhola Singh died. It was held that defence of accused that his case was covered under one of Exceptions to Section 300 was not corroborated by evidence on record. Link between the attack and provocation could not be made. The attack was initiated due to some past incident and sufficient time had elapsed since.
Other conditions
Intoxication: Likewise, the intentional killing may not be reduced to voluntary manslaughter where, because of intoxication, he loses self control; that is to say, he is to be judged by the standard of a reasonable sober man. The test is usually how the victim’s action affects a reasonable person, not how it affects a person with the defendant’s physical characteristics.56
In the case Girja Devi alias Gita Devi v. State of Himachal Pradesh57, the accused’s husband, used to consume liquor all the time and beat her. On the night of the killing, the deceased had come home drunk and had started kicking his wife as soon as he entered the house. She brought food for him which he refused to take and then he stripped her. He had sex with her in the natural way and then beat her up. Thereafter, he directed her perform oral sex and she refused. He insisted again and said if she did not do so he would kill her and their son. He tried to put his organ forcibly into her mouth and took 'Darat ' in his hands and threatened to kill. The accused got hold of a sickle and killed him. The accused “wanted to satisfy his perverted lust on his helpless wife” and his acts were certainly of such gravity as to cause provocation to the accused and as he suddenly forced his way into her mouth and threatened her with death, who lost her self-control and without any time-lag or before cooling down, proceeded to kill him. The court had thus applied the reasonable man’s test and judged accordingly entitling the accused to the first Exception of Section 300.
Reasonable retaliation: In some cases, whether the homicide is reduced from murder to voluntary manslaughter may depend on the kind of weapon used in response to the provocation; for example, where the provoker used a light blow with a fist on the defendant, the defendant may not in retaliation, use a dagger in response to the light blow and have his homicide reduced to voluntary manslaughter; since the use of dagger constitutes excessive force.58 This is also imbibed in the general rule of private defence wherein the individual is only supposed to use as much force as is necessary for the purpose of defending self.
However the approach taken by these Indian decisions denies any foothold to the ‘reasonable retaliation rule’ and thereby brings the law into accord with human reality. As Beg J in Akhtar v. State of Uttar Pradesh59 asserts, “it is futile to apply any yardstick of reasonableness to an accused 's behaviour performed whilst he or she was deprived of self-control. Whether an ordinary person could have killed under similar provocation as the accused, let alone killed in precisely the same way as the accused, is surely a matter of pure conjecture. After all, the human reality is that while ordinary people may frequently lose their self-control, they very rarely kill, and if this fact were to be strictly accounted for by the courts, the defence of provocation would almost never succeed."60 The role of the ordinary person 's power of self-control should therefore be limited to the point in time preceding to the accused 's loss of self-control so that the question to ask is whether an ordinary person confronted with the same provocation as the accused could have lost self-control.
Provocation distinguished from Private Defence and Sudden Fight
Sudden fight v. grave and sudden provocation
It may also be noted that grave and sudden provocation may be distinguished from sudden fight given under Exception 4. The scope of Exception 1 is much wider compared to the latter. Both Exceptions entail an element of suddenness and though a sudden fight may cause provocation however, Exception 1 incorporates various kinds of provocation and it must be unilateral i.e. provocation must be flowing from one side which causes the accused (other side) to lose control. On the other hand, a sudden fight involves input from both sides and the onus cannot be laid upon one side. “There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 to Section 300, I.P.C. can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender 's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found.”61
Private defence v. grave and sudden provocation
Exception 2 to Section 300 lays down the defence of private defence which negatives the offence of murder and instead the accused is convicted for culpable homicide not amounting to murder. Private defence is undertaken when the person is in danger from the person against whom it is exercised. It is different from Exception 1 and its scope is comparatively narrow. While Exception 2 suggests an accusative tone, and can be applied only when the person or somebody close to him is actually in danger. Grave and sudden provocation can be caused due to numerous acts of a person and need not cause immediate danger to the accused. "No one is entitled to avail the benefit of his right as envisaged under Section 10062 unless; there is grave and sudden provocation from deceased."63
CONCLUSION
It can be concluded from the rulings that all cases in favour of the accused necessarily fulfill a few basic conditions in order to reduce the offence from Section 302 to Section 304, namely, provocation that is grave and sudden, which necessarily causes the accused to lose self-control, and the retaliation is done prior to cooling down. The courts apply the test of ‘reasonable man’ in order to adjudicate along with other principles laid down in landmark judgments. If abovementioned conditions not satisfied, accused is convicted for the graver offence of murder punishable by Section 302.
The test of a reasonable man or ordinary person is in fact subjectivised in the Indian scenario as it takes into account certain characteristics of the accused such as ethnicity which brings the law closer to human veracity and renders greater degree of justice or rather expands the scope of justice.
An intricate situation arises if it is required, while considering the reasonable man’s test, that the reasonable man lose self-control to the extent of killing akin to how the accused did in order for the accused to establish his defence. This creates a dilemma because it is ordinary for people to lose self-control however they do not kill save in rare cases, let alone kill in the same way as the accused. This can be overcome by only examining whether a reasonable man in the accused’s place would have committed the offence of killing and not whether he would have done so similarly.
Therefore, it is an arduous task for the courts to determine whether the accused should be allowed the reduction of the offence from murder to culpable homicide not amounting to murder and such a task is profoundly dependent on the particular facts and circumstances of each case and the mens rea involved in the mind of each offender.
In case of sudden and grave provocation, the accused does not have authority over his own actions and thus such an Exception is certainly a requisite one with regard to severe offence of killing a human being to protect such accused person to a certain extent and yet punish the grave crime.
BIBLIOGRAPHY
Books:
1. P.S.A. Pillai, K.I. Vibhute, P.S.A. Pillai’s Criminal Law, (LexisNexis Butterworths India, 10th Edition, 2008)
2. Ratanlal & Dhirajlal, The Indian Penal Code, (Nagpur: Wadhwa & Company, 28th Edition Reprint, 2002)
3. R.P. Kathuria, Law of Crimes & Criminology, (Vinod Publications Pvt. Ltd, Vol. 2, 2000)
4. P.M. Bakshi (ed.), Law of Crimes: Exhaustive Commentary on India Penal Code, 1860, (India Law House, Vol. 2, 5th Edition, 2001)
5. Halsbury’s Laws of England (4th Edition, Vol. II)
6. Evelyn Gibson, Homicide in England and Wales 1967-71 (Home Office Research Studies, 31, 1975)
7. J.W. Cecil Turner, Kenny’s Outlines of Criminal Law, (Universal Law Publishing Co Pvt. Ltd, 19th Edition, 2002)
8. Glanville Williams, Textbook of Criminal Law, (New Delhi: Universal Law Publishing Co., 2nd Ed., 2012)
9. K. D. Gaur, Criminal Law: Cases and Materials, (New Delhi: Lexis Nexis Butterworths, 5th Ed., 2008)
Articles:
1. Stanley M.H. Yeo, Lessons on Provocation from Indian Penal Code, The International and Comparative Law Quarterly, Vol. 41, No. 3 (Jul. 1992), p. 615-631.
2. J.A. Illife, Provocation in Homicide and Assault Cases: The Common Law and Criminal Codes, The International and Comparative Law Quarterly, Vol. 3, No. 1 (Jan., 1954), p. 23-48
3. M. Sornarajah, Commonwealth Innovations on the Law of Provocation, The International and Comparative Law Quarterly, Vol. 24, No. 2 (Apr., 1975), p. 184-204
Websites:
1. http://legalservicesindia.com/article/article/culpable-homicide-582-1.html
2. http://manupatrafast.com
3. http://thelawdictionary.org
4. http://www.jstor.org/
5. http://westlaw.com
6. http://www.ilt.columbia.edu/publications/Projects/digitexts/aristotle/nicomachean_ethics/book05.html
7. http://sixthformlaw.info/01_modules/mod3a/3_31_voluntary/04_provocation.htm
8. http://san0670.wordpress.com/tag/mancini-v-director-of-public-prosecutions/
Cases:
1. Hayward (1833) 6 C. & P. 157
2. Raghunath v. State of Haryana, AIR 2003 SC 165
3. Bhura Ram v. State of Rajasthan, (2003) 9 SCC 205
4. Mannam Balaswamy v. State of Andhra Pradesh, AIR 1980 SC 448
5. Mancini v. Director of Public Prosecutions, 1942 AC 1
6. Sukhlal Sarkar v. Union of India, 2012 (4) SCALE 599
7. Francis alias Pannan v. State of Kerala, 1975 SCR (1) 485
8. Rohidas Manik Kasrale v. State of Maharashtra, 2012 (114) Bom LR 203
9. Boya Munigodu v. The Queen, ILR 3 Mad 33
10. Scroggs v. State, 94 Ga. App. 28 (1956)
11. Mahmood v. State, AIR 1961 All 538
12. Empress v. Khogayi, (1879) I.L.R. 2 Mad 122
13. Sukhlal Sarkar v. Union of India, 2012 (4) SCALE 599
14. Queen-Empress v. Devji Govindji, (1895) I.L.R. 20 Bom 215
15. Hansa Singh v. State of Punjab, AIR 1977 SC 1801
16. R v. Thomas, (1837) 7 C & P 817
17. Onbey, 2 LR 1485
18. R v. Lesbini, (1914), 11 Cr. App. R. 7
19. Director of Public Prosecutions v. Camplin, (1978) 2 All ER 168 (HL)
20. KM Nanavati v. State of Maharashtra, AIR 1962 SC 605
21. Lokesh v. The State rep. by Inspector of Police rep. by State Public Prosecutor, Criminal Appeal No-669/2007, Decided On: 16.09.2011
22. Gura Singh v. State of Rajasthan, (1984) Cri LJ 1423
23. Abdul Majid v. State of Madhya Pradesh, AIR 1963 MP 364
24. Mansa Ram v. State, 1975 CriLJ 1772
25. Panchu Lal v. State of Rajasthan, 2006 (3) WLC 707
26. In Re, Vairana Pillai, (1966) Cri LJ 222
27. R v. Ahluwalia, (1992) 4 All ER 889
28. Muthu v. State of Tamil Nadu, (2007) 7 Supreme, 547
29. Dattu Genu Gaikwad v. State of Maharashtra, AIR 1974 SC 387
30. Guru Dev Singh v. State of Madhya Pradesh, (2011) 5 SCC 721
31. Bedder v. Director of Public Prosecutions, (1954) 1 WLR 1116
32. Girja Devi alias Gita Devi v. State of Himachal Pradesh, 2000 Cri LJ 1528
33. Mancini v. Director of Public Prosecutions, 1942 AC 1
34. Akhtar v. State of Uttar Pradesh, AIR 1964 All 262
35. Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653
36. Raghavan Achari and Njoonjappan v. State of Kerala, AIR 1993 SC 203
Bibliography: 2. Ratanlal & Dhirajlal, The Indian Penal Code, (Nagpur: Wadhwa & Company, 28th Edition Reprint, 2002) 3 4. P.M. Bakshi (ed.), Law of Crimes: Exhaustive Commentary on India Penal Code, 1860, (India Law House, Vol. 2, 5th Edition, 2001) 5 6. Evelyn Gibson, Homicide in England and Wales 1967-71 (Home Office Research Studies, 31, 1975) 7 8. Glanville Williams, Textbook of Criminal Law, (New Delhi: Universal Law Publishing Co., 2nd Ed., 2012) 9 2. J.A. Illife, Provocation in Homicide and Assault Cases: The Common Law and Criminal Codes, The International and Comparative Law Quarterly, Vol. 3, No. 1 (Jan., 1954), p. 23-48 3 1. Hayward (1833) 6 C. & P. 157 2 3. Bhura Ram v. State of Rajasthan, (2003) 9 SCC 205 4 5. Mancini v. Director of Public Prosecutions, 1942 AC 1 6 7. Francis alias Pannan v. State of Kerala, 1975 SCR (1) 485 8 13. Sukhlal Sarkar v. Union of India, 2012 (4) SCALE 599 14 19. Director of Public Prosecutions v. Camplin, (1978) 2 All ER 168 (HL) 20 25. Panchu Lal v. State of Rajasthan, 2006 (3) WLC 707 26 27. R v. Ahluwalia, (1992) 4 All ER 889 28 31. Bedder v. Director of Public Prosecutions, (1954) 1 WLR 1116 32 33. Mancini v. Director of Public Prosecutions, 1942 AC 1 34 35. Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 36
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