Assignment: Grave and Sudden Provocation:An Analysis As Defence With Respect To Provisions of Indian Penal Code

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JAMIA MILLIA ISLAMIA
ASSIGNMENT
Grave and Sudden Provocation:An analysis as defence with
respect to provisions of Indian Penal Code
SUBMITTED BY:
SYED AQUIB ALI SEMESTER 3, YEAR 2
,B.A.LL.B.(HONS.)
ROLL NO.-61
ACADEMIC SESSION-2017-18
Grave and Sudden Provocation : An analysis as defence with respect to provisions of Indian Penal Code
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ACKNOWLEDGEMENT
First of all, my special thanks to Allah who helped me in achieving this work and lightens
my way.
The completion of this assignment gives me much pleasure. I would like to show my gratitude
to Mrs. Sadia, Jamia Millia University for giving me a good guideline for assignment
throughout numerous consultations. I would also like to expand my deepest gratitude to all those
who have directly and indirectly guided me in writing this assignment.
Many people, especially my classmates itself have made valuable comment, suggestions which
gave me an inspiration to improve my assignment. I thank all the people for their help directly
and indirectly to complete our assignment.
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TABLE OF CONTENT
. Introduction
. Grave and Sudden Provocation:An analysis as defence with respect to provisions of
Indian Penal Code
. No grave and sudden provocation:
. Legal consequences of murdering someone out of grave and sudden provocation.
. What amounts to Murder according to the Indian Laws
. When Culpable Homicide is not Murder
. Death caused due to grave and sudden provocation
. Nanavati Case: Three Shots that shook the Nation
. Difference between Murder and Culpable Homicide
.Conclusion
.Bibliography
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INTRODUCTION
Naturally,provocation has to receive some consideration in any penal system that approves of
gradations of punishments.In fact,it has been almost universally recognized as an extenuating
circumstance justifying reduction in punishment;and in a few countries,it is even made an excuse
or justification negativing all responsibility for the crime committed under exceptionally
circumstances.Not only that the defence of provocation has different standards in respect of
different offences,but even in respect of the same offence,namely,murder,it operates in diverse
patterns though the net result obtained thereby is the same in each case;namely it prevents
culpable homicide from amounting to murder.
The success or failure of the defence of provocation to a charge of murder makes a world of
difference to the accused person.In case of other offences where the defence of provocation has
been specifically provided by the Code1,the success or failure of the plea of provocation would
not lead to such enourmously divergent results.
Provocation,in case of murder as distinct from other offences,is much more than an extenuating
circumstance.
In order to invoke the operation of provocation it is necessary that the provocation is
‗‗sudden‘‘and that the offence is committed ‗‗whilst the offender is deprived of the power of
self-control by grave and sudden provocation‘‘.
Grave and sudden provocation is,therefore,defined in terms of its capacity to make a reasonable
man lose his self-control.2When a person is suddenly confronted with grave
provocation,normally the consequential loss of self control is almost instantaneous.Naturally,if
1
Ss.334,335,358.
2
If objective standard of reasonable man is to be applied for measuring the gravity of provocation,the same will
have to be done in case of suddenness also.
5
there is some interval between the provocation and the loss of self control,it would generally
mean that one is not the cause of other.In such a case the loss of self-control not being caused by
sudden provocation,the defence will not be available.The duration of the loss of self-control will
depend upon the degree of ‗gravity and suddenness‘of the provocation received;it will also
depend upon the mental set-up of the particular accused.
A person may receive ‗grave and sudden‘ provocation and thereby lose his self control.But if he
commits the offence only after he regains self-control,the defence of provocation is not
available.Because the exception will apply only if the death is caused by the accused whilst
deprived of the power of self-control.If the time between the provocation and the fatal stroke is
considerable,it may indicate that,at the time the death was caused,there was no loss of self-
control;but this time-lag will have no bearing on the issue of suddenness of provocation. The
word sudden according to its ordinary connotation means ‗‗occuring or come upon or made or
done unexpectedly or without warning,abrupt,abnormally rapid,hurried3.‘‘
3
Vide,concise Oxford Dictionary,I ed.
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Grave and Sudden Provocation:An analysis as defence with respect to provisions of Indian
Penal Code
An offence committed in the sudden heat of passion on grave provocation is morally less
blameworthy than one committed in a cool and reasoned manner. The Indian Penal code,1860,is
content with allowing provocation as a partial defence only,and that too, in respect of few
offences like Murder,voluntarily causing hurt(grievous or simple),using criminal force,and
assault.4However,the Indian courts,while exercising the discretion in awarding punishments,have
in practice widened the scope of this partial defence.Quite often,they do consider provocation as
a mitigating circumstance even if that provocation is not of the requisite type and degree
specified in the code.5To get a comprehensive picture of the defence of provocation,one will
have to refer to about ten sections6 in the code . Broadly, they deal with two aspects of the
defence-(i) The nature and quality of the provocation required,and (ii)its effect on punishment in
respect of particular offences. The scheme of the sections appears to have suffered from
defective legislative technique. The relevant provisions do not possess adequate balance and
symmetry, and lack in consistency as well.It is difficult to rationalise why only in cases of7
Murder, Grievous hurt, Hurt, Assault, and Criminal force, Provocation has been specifically
provided as a mitigating circumstance , while in case of other offences, the code makes no
reference to provocation at all. If it is desirable to consider provocation as a defence in case of
hurt or assault, it should be equally so in case of culpable homicide not amounting to murder8, or
4
Ss.300,334,335,358
5
Abdullah,33 P.L.R. 382;Hari Singh, 33 P.L.R. 154;Rahman, A.I.R. 1930 Lah. 344;Puran,
(1915) 33 I.C. 830;Rahman, (1937) 39 P.L.R.741;Narayan Nair ,A.I.R. 1956 S.C.99.
6
Ss.300;325,326,335;323,324,334;352,355,358.
7
Ss.300,Exception 1 ;335,334,358.
8
Ss.304
7
in case of wrongful restraint9. Some offences against property also, like mischief10, when
committed on grave and sudden provocation, may lose much of their sting ; and it will, therefore,
not be fair to ignore the provocation, while awarding the punishment. It may be suggested that
even in respect of such other offences, the courts, in the exercise of the discretion in passing the
sentence, may take into account the circumstance of provocation, and mitigate the punishment
suitably. No doubt, courts have considered provocation as a mitigating circumstance even in
cases11 not expressly provided for under the code. But this only indicated that the legislative
omission is not likely to make material difference in actual practice ; the argument, therefore,
does not meet the whole case. It does not explain why the defence was expressly made available
in respect of a few offences and not in respect of others. Except probably in case of Murder,
there is hardly any justification for such legislative discrimination. The code makes a distinction
between simple hurt and grievous hurt,and prescribes an enhanced penalty for the latter.12
Provocation does not affect this distinction though it mitigates punishment provided in each
case.13 While the code retains the distinction based on the nature of injury caused ,i.e.,one
between hurt and grievous hurt,it allows provocation to obliterate the distinction made on the
basis of weapons or means employed for causing the hurt.Voluntarily causing hurt or grievous
hurt is considered aggravated if such hurt is caused by dangerous weapons or means, and thereby
invites enhanced punishment.14 But if such hurt is caused on provocation,it is immaterial what
weapons or means were used for such hurt15.Here again,the punishment provided for causing
9
Ss.339
10
Ss.425
11
T.Alibi v.Govt. of Mysore,A.I.R.1952 Mys. 10
12
Ss.323&325,read with Ss.319&320
13
Ss.334&335,read with Ss.323&325
14
Ss.324 and 326
15
Ss.334&335;see also,Chullundee Poranick(1865)3W.R.(Cr.)55.Bhalla Chula,1B.H.C.R.17.
8
hurt on provocation being only a maximum one ,the judge is free to make a variation in
punishment on the basis of weapons or means used.Further,in order to decide whether
provocation was grave and caused the loss of self-control in any particular case,courts do take
into account the means or weapons used by the accused.Therefore,though the code considers the
means to be immaterial, yet in practice,they are relevant while allowing the defence of
provocation.
Sec.352 provides punishment for ‗assault or criminal force otherwise than on grave provocation‘.
And,as counterpart of this,Sec.358 mitigates the punishment if that offence is committed on
grave provocation.Sec.355 provides enhanced punishment for the aggravated form of ‗assault or
criminal force otherwise than on grave provocation‘,the aggravating circumstance being the
intent to dishonour the victim of the crime.The code has not provided a counterpart to this sec. so
as to cover the offence committed on grave provocation. Again ,the nature of provocation
referred to in sec.335 is different from that referred to in sec.352 and 358.The result is, if the
offence contemplated by sec.355 is committed on such provocation as is referred to in that
section ,it can only be punished either under sec.358 or sec.352,depending upon wehether the
provocation satisfies all the conditions laid down in sec.358 or not.Therefore,though it would be
incorrect to suggest that the provocation negatives the intent referred to in sec.355,yet,so far as
the punishment is concerned ,the effect of the aggravating circumstance is negative by such
provocation.
The standard of provocation and the prerequisite conditions for availing the defence of
provocation,are not uniform in all cases where the defence is explicitly allowed in the Code.In
cases of Murder,the defence is required to prove,inter alia,that the death was caused by the
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offender,whilst deprived of the power of self control by the grave and sudden provocation16
,whereas in case of remaining offences17 ,such proof of the deprivation of the power of self-
control is not necessary.The framers of the Code might not have intended to provide a different
pattern of the defence of the provocation in respect of other offences18 ;but actually this has been
the result.The Courts while dealing with cases other than that of murder,never required the proof
of the deprivation of the power of self – control.They did not normally even advert to any such
mental condition19 .In the case of Bhagwan Chhagan,20 the Bombay High Court did not dispute
the availability of the defence under sec.335 irrespective of the deprivation of the power of self-
control.The court,however,considered that if the power of self-control remained unimpaired by
the provocation,the offence would invite enhanced punishment.21
The defence of provocation contemplated by Sec.35522 is much wider.Not only it does not
require the proof of the deprivation of the power of self-control23 ,but it also does not necessitate
the proof24 that (i)the provocation was not sought or voluntarily provoked by the offender as an
excuse for the crime,or (ii)the provocation was 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;or
16
See exception 1 to sec.300.
17
Ss.334,335,355,358.
18
While discussing about the provisions dealing with bodily hurt voluntarily caused by sudden
and grave provocations,the author of the code say,‖the provisions which we propose on the
subject are framed on the same principles on which we have framed the law of manslaughter,and
may be defended by the same arguments by which the law of manslaughter is defended‖-note
M.P.70
19
Lai Bakhsh,A.I.R.1945 Lah.43;Sheodin Hari Prasad v. Juwani,A.I.R.1927 Nag.47;Bhagwan
Chhagan,A.I.R.1915 Bom.120
20
A.I.R.1915 Bom.120
21
Bhagwan Chhagan,supra
22
This section prescribes punishment for ―assault or criminal force with intent to dishonor
person,otherwise than on grave provocation‘‘
23
Such proof is necessary only in case of Murder,see section 300,exception 1
24
In case of all other offences including Murder,such proof is essential. See provisos to
exception 1 to Ss.300,Ss.334-335. Explanation,Ss.352 and 358 Explanation
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(iii)the provocation is not given by anything done in the lawful exercise of the right of private
defence.
The omission apparently is more by oversight than by design.So far,no judicial decision has
thrown any light on the exact requirements of the defence of provocation under sec.355.
The burden of proving provocation is not consistently on the accused,wherever provocation has
been specifically described as a mitigating circumstance.In cases of murder (other than those
falling under cl.4 of sec.300),hurt(ss.323,324),grievous hurt(ss.325,326),the onus is on the
accused to prove provocation25 ,while it is for the prosecution26 to prove absence of provocation
in respect of offences falling under Ss.352 and 355.This unwarranted discrimination has crept in
because of Ss.103 and 105 of the Evidence Act,1872,when read with the said sections of the
Indian Penal Code,186027. The subsequent passage of the Indian Evidence Act in 1872
necessiated reconsideration and suitable modification of the abovesaid Ss.352 and 355,but it has
not been done so far.The discussion so far pertained to the scheme of sections dealing with the
defence of provocation . Briefly,two observations might be made about the points raised in the
preceding paragraphs-(i)Provocation,in practice,has been generally looked upon as a mitigating
circumstance.Therefore,it is unnecessary ,except in case of murder,to make specific provisions
about this defence in respect of only a few offences.At the most,an omnibus provision
recognizing provocation as a mitigating circumstance may be made in the chapter on
25
Sec.105,Indian Evidence Act,1872. See illustrations (b) and (c) to that section.
26
Sec.103,Indian Evidence Act,1872.See also,Sheodin Hari Prasad v.Juwani,A.I.R.1927Nag.47
27
Sec.103 of the Indian Evidence Act,1872,is as follows- The burden of proof as to any
particular fact lies on that person who wishes the Court to believe in its existence, unless it is
provided by any law that the proof of that fact shall lie on any particular person. Sec.105 of the
Indian Evidence Act,1872,is as follows- When a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of the General Exceptions in
the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any
other part of the same Code, or in any law defining the offence, is upon him, and the Court shall
presume the absence of such circumstances.
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punishments28.(ii)Alternatively,existing provisions that lack consistency and symmetry,should at
least,be suitably modified so as to secure uniformity in the operation of the defence of
provocation.
For an exception on the ground of ―grave and sudden provocation‖ the following facts must be
proved-
(1)That the accused received provocation;
(2)That the provocation was (a) grave, and (b) sudden;
(3)That he was deprived by the provocation of his power of self-control;
(4)That while thus deprived of his power of self-control and before he could cool down he
caused the death of the person who gave him the provocation.
The Explanation at the end of the Exception is very important. It says that the question whether
the provocation was grave and sudden enough to prevent the offence from amounting to murder
is a question of fact, that is, it should not be treated as a question of law and should be decided
according to the facts and particular circumstances of each case.
No abstract rule of reasonableness can be laid down. What a reasonable man, i.e., a normal
person will do in certain circumstances depends upon the cultural, social and emotional
background of the society to which he belongs.
The court must consider the reaction not of the normal man in the abstract but the normal man
whose impulses are conditional by the same environments as those of the accused.
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.
28
Chapter(III),‗‗Of Punishments‘‘
12
The provocation was not so grave as to cause a loss of self-control, the abuses giving rise to it
not being such as to give rise to such degree of provocation nor can it be said to be sudden when
the accused could go home, come armed with a spear bringing his brothers with him armed with
lathis.The interval was sufficient to cool down.
CASES--
The occurrence took place while the deceased was committing sodomy on the appellant‘s son
and that gave such a grave and sudden provocation and annoyance to the appellant which
implied him to assault the deceased.The provocation was grave and sudden under which the
appellant lost his power of self-control which led him to commit the murderous assault on the
deceased. The offence falls within the purview of Section 304, Part II, and I.P.C.
Death on account of dagger injury caused on the neck. Occurrence taking place without any
premeditation while the deceased along with the accused and others had finished meals.
Accused, held could not be said to have any intention to cause the particular injury on the vital
part.Accused, however, must be deemed to have knowledge that death might be caused by his
act. Conviction under Section 302, I.P.C., was liable to be changed to one under Section 304,
Part II. When the wife of the accused confessed to him that she had illicit intimacy with the
deceased who was not present there, it can be assumed that he had momentarily lost his self-
control.But then after this when he drove his wife and children to a cinema, left them there, went
to his shop, took a revolver on a false pretext, loaded it with six rounds, did some official
business there, and drove his car to the office of the deceased and then to his flat, went straight to
the bedroom of the deceased and shot him dead and between the time when he left his house and
the time when the murder took place, three hours had elapsed, there was sufficient time for the
accused to regain self-control, even if he had not regained it earlier.On the other hand, his
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conduct clearly showed that the murder was a deliberate and calculated one. The mere fact that
before the shooting the accused abused the deceased and the abuse proved an equally abusive
reply could not conceivably be a provocation for murder. Therefore, the facts did not attract the
provisions of Exception 1 to Section 300.
Where a sudden altercation between the deceased and the accused ensues in a free fight between
the two parties and both parties receive almost equal injuries, and the accused dealt a single blow
resulting in death and the accused had received several injuries including one on head and
fracture of bone, the case is covered by Exception 1 to Section 300 and the offence committed is
culpable homicide not amounting to murder.
In a school committee meeting one B made remarks that the father and the uncle of the accused
were monopolising all seats of authority, and that they were dishonest. The accused on hearing
this went to his house which was about a furlong away and brought the gun.By that time the
meeting had ended in disorder and the people were dispersing on the road. The accused asked
those who were near B to move away because he wanted to shoot B. Then he fired a shot but he
missed his aim.B then started running to save himself. In the meantime the deceased who was the
maternal uncle of the accused rushed towards the accused in order to prevent him from using the
gun. The accused however, pushed him back and fired at B.But the deceased came between the
gun and B and was shot in the back. It was held by the Supreme Court that the offence
committed was of a murder because the remarks uttered by B could not be regarded as grave
provocation under the circumstances.
No grave and sudden provocation:
The wife of the accused was not being sent on one pretext or the other. The accused heard
rumours that his wife and his mother-in-law were selling their flesh (i.e., honour) for monetary
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gains and despite repeated efforts, his wife was not sent. These circumstances cannot constitute
such sudden and grave provocation as to justify a murderous assault on the wife by the accused.
In the quarrel of the accused with another the innocent intervener received knife injuries from the
accused due to which he died. Supreme Court held that there was no sudden and grave
provocation and as such conviction under Section 302, I.PC. is proper and not under Section 304,
I.P.C.
When the appellant at dead of night found the deceased with his wife alone in the house with the
doors chained from inside and losing control of his mind chased the deceased and ultimately
killed him it was held that person who finds his wife and her paramour in flagrante delicto
undoubtedly receives the highest provocation and the indulgence which the law shows in such
cases is condecension to the frality of human nature.
The circumstances provoked the appellant gravely and suddenly. The result was the reduction of
the punishment from 6 years‘ rigorous imprisonment to 3 years‘ rigorous imprisonment.
The appellant first came to the place of occurrence empty handed. The appellant went to his
room which was at a distance of only three paces, brought his knife from there and assaulted the
deceased. The deceased was the father of the appellant.
The possibility of the appellant having lost his self-control as a result of the grave and sudden
provocation given by the deceased cannot be ruled out. The confession of the appellant indicates
that the grave and sudden provocation which made the appellant loose his self-control was the
immoral conduct of the deceased.
Only one blow was given by the appellant to deceased which proved fatal. In these
circumstances, the appellant cannot be held guilty under Section 302, I.P.C., but is guilty under
Section 304, Part I.
15
It is clear that there was no case of provocation made out and much less of any grave or sudden
provocation to accused during or immediately preceding the incident or as to enable the accused
to plead the first exception to Section 300, Indian Penal Code.
The provocation as contemplated by law must be grave as well as sudden so as to deprive the
individual of the power of self-control before the first Exception to Section 300 could apply.
Nevertheless, in deciding whether the case merits the less severe of the two penalties prescribed
for murder a history of relation between the parties concerned, the background of the context, or
the factual setting of the crime, and the strength and nature of the motive operating on the mind
of the offender, are relevant considerations. The state of feelings and mind produced by these
while insufficient to bring an exception, may suffice to make the less severe sentence more
appropriate.
Legal consequences of murdering someone out of grave and sudden provocation.
The act of killing a human being by another human being is known as Homicide. When the death
of a human being is caused by the negligent, reckless and intentional act of the human being then
it will be taken as a criminal homicide and there is provision for the punishment of such act in
the law. We have various examples before us where the homicide is not punishable such as death
sentence, self-defense, etc.
Blackstone has defined Crime as ―an act committed or omitted in violation of a public law either
forbidding or commanding it‖. Crime is wrong done against the society at large. Any act of
crime disturbs the whole equilibrium of the society and not only the individual who suffers the
crime but the whole community gets
affected.
What amounts to Murder according to the Indian Laws
16
The Indian Penal Code,1860 defines the Murder as the culpable homicide committed with a high
degree of intention or knowledge described under section 300 of the Code. Culpable Homicide is
defined under Section 299 of the IPC as ―Whoever causes death by doing an act with an
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‖.There are different conditions given under section 300 of the Indian Penal
Code, 1860 where culpable homicide leads to murder.
. When the death of a human being is caused due to the intentional act of another person to
cause death then the accused will be liable for murder under section 300 (1) of the IPC. The
Supreme Court in the case of Rawalpenta Venkalu v. State of Hyderabad29 stated that when the
facts and condition clearly show the intentional act of the accused which lead to murder then
they will be liable for murder. The facts of the case were as such that the accused persons locked
the single room hut from the outside in which the deceased was sleeping. The house was poured
with kerosene from outside and then set the hut on fire. The people who came to rescue the
deceased were stopped by the accused with the help of lathis. So, the facts and conditions here
clearly shows the intention of the accused too cause death which made all liable for murder.
. The person even after knowing the peculiar medical condition of someone causes such bodily
injury to that person which could be fatal for the person suffering from the peculiar medical
condition but it may be normal for any ordinary person. Such an act against the person of
peculiar medical condition is taken as murder under section 300(2) of the IPC.
. Section 300(3) of the IPC contains the words ―bodily injury sufficient in the ordinary course
of nature to cause death‖ which means that death is the most probable result of such type of
injury and any ordinary person could not survive that type of injury. The hon‘ble Supreme Court
29
A.I.R. 1956 S.C. 171
17
in the case Virsa Singh v. State of Punjab30 decided that ―In the absence of any circumstances to
show that the injury was caused accidentally or unintentionally, it had to be presumed that the
accused had intended to cause the inflicted injury. Whether the injury intended by the accused
and actually inflicted by him is sufficient in the ordinary course of nature to cause death or not, is
a matter of objective determination which must be determined in each case on the basis of the
facts and circumstances‖.
. The person commits an act which so much dangerous that it will cause death or such bodily
injury which is likely to cause death and such act is done without any excuse for incurring the
risk of causing death.
When Culpable Homicide is not Murder
There are some exceptions to the section 300 of the Indian Penal Code, 1860 which states the
situations when the culpable homicide will not be considered as murder. The accused person can
claim for such exceptions provided under this section. If the accused is able to satisfy the Court
that the reason behind the act done by him which caused Death to a person come under the
exceptions of Section 300 of the Indian Penal Code, 1860.
Death caused due to grave and sudden provocation
The death happening due to acts done under the influence of grave and sudden provocation is an
exception to the section 300 of the IPC. When the accused is suddenly provoked by any person
and that provocation makes the accused to lose his control which ultimately leads to death of the
person who provoked or any other person by mistake or accident then the accused will not be
liable for murder but only for culpable homicide.
There should be no time gap between the provocation and the retaliatory action caused due to
that provocation. The accused cannot take the plea of sudden or grave provocation if the death
30
A.I.R. 1958 S.C. 465
18
has been caused due to well managed plan and the main aim behind provocation was to commit
murder.
Nanavati Case: Three Shots that shook the Nation
The famous case of K.M Nanavati v. State of Maharashtra31 describes the time gap between the
provocation and retaliatory action. If the sufficient period of time has elapsed after the
provocation then the accused cannot take the plea that the death caused due to sudden anger or
provocation. In this case, a naval officer named K.M. Nanavati was accused of the murder of a
businessman named Prem Ahuja who had illicit relations with his wife. The wife revealed about
the illicit relationship with the businessman that caused extreme rage and anger to the naval
officer. The officer went to the ship and took a semi-automatic revolver to kill the businessman.
He went directly to the bedroom of Prem Ahuja and shot him with gun after some hot
conversation. The naval officer then asked for partial exemption from criminal liability on the
ground that he acted in such a manner due to sudden provocation. The Court held that a
significant amount of time had elapsed between the provocation and the retaliatory action done
by the officer. The time elapsed was quite enough to cool down for a reasonable person. Hence,
the court held the naval officer liable for the murder of the businessman Prem Ahuja.
Difference between Murder and Culpable Homicide
The Indian Penal Code, 1860 discusses about two types of culpable homicide. The culpable
homicide amounts to murder if the death is of grave in nature but it does not amount to murder
when the death has been caused under some situations and circumstances. The deaths happened
according to the criteria given under Section 300 of the IPC create liability of murder. Section
302 deals with the punishment for murder while section 304 contains the provisions of the
31
A.I.R. 1962 SC (605)
19
punishment for culpable homicide not amounting to murder.
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 greatest
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 first 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.[State of A.P. v. Rayavarapu Punnayya and Another32 ]
Murder Under Section 300 has four exceptions;...
1.Sudden and grave provocation...
2.Right of private defence...
3.Public servant acted on good faith...
4.Sudden Fight...
In this case, the Supreme Court has explained the difference between Exception 1 and 4 of sec
300
Exception- 1 reads as follows;...
When culpable homicide is not murder.— Culpable homicide is not murder if the offender,
whilst deprived of the power of self-control by grave and sudden provocation, causes the death
32
A.I.R. 1977 S.C. 45
20
of the person who gave the provocation or causes the death of any other person by mistake or
accident....
Exception-4 reads as follows;...
Culpable homicide is not murder if it is committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without the offender having taken undue
advantage or acted in a cruel or unusual manner.
Explanation- It is immaterial in such cases which party offers the provocation or commits the
first assault.
The Supreme Court observed that Exception 4 to Section 300 of the IPC applies in the absence
of any premeditation. This is very clear from the wordings of the Exception itself.
The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden
quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said
Exception deals with a case of ... provocation not covered by the first exception, after which its
place would have been more appropriate. The Exception is founded upon the same principle, for
in both there is absence of premeditation.
But, while in the case of Exception 1 there is total deprivation of self-control, in case of
Exception 4, there is only that heat of passion which clouds men‘s sober reason and urges them
to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception
1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals
with cases in which notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute
or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties
puts them in respect of guilt upon an equal footing. A ―sudden fight‖ implies mutual provocation
21
and blows on each side. The homicide committed is then clearly not traceable to unilateral
provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the
Exception more appropriately applicable would be Exception 1.
There is no previous deliberation or determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may be that one of them starts it, but if the
other had not aggravated it by his own conduct it would not have taken the serious turn it did.
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 can be invoked if death is caused
(a) without premeditation
(b) in a sudden fight,
(c) without the offenders having taken undue advantage or acted in a cruel or unusual manner,
(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. It is to be
noted that the ―fight‖ occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes
two to make a fight. Heat of passion requires that there must be no time for the passions to cool
down and in this case, the parties had worked themselves into a fury on account of the verbal
altercation in the beginning.
A fight is a combat between two and more persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a
question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved
facts of each case. For the application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown that the offender has
not taken undue advantage or acted in a cruel or unusual manner. The expression ―undue
22
advantage‖ as used in the provision means ―unfair advantage‖.
Murder
Murder is thus defined in section 300 of the Indian penal code.
Except in the cases hereinafter excepted, culpable homicide is murder.
(1) Firstly – If the act by which the death is caused is done with the intention of causing death; or
(2) 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 hurt is caused, or
(3) Thirdly – If it 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
(4) 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 bodily injury as
aforesaid.
Punishment : Death or imprisonment for life and fine. (Section 302) Murder by a life convict is
punishable with death. (section 303)
Exception I. – 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 above exception is subject to the following provisions:
Firstly – That the provocation is not sought or voluntarily provoked by the offender as an excuse
for killing or doing harm to any person.
Secondly – That 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.
23
Thirdly – That the provocation is not given by anything done in the lawful exercise of the right
of private defence.
Explanation : Whether the provocation was grave and sudden enough to prevent the offence
from amounting to murder is a question of fact.
Illustration (a) A under the influence of passion excited by provocation given by Z,
intentionally kills Y,Z‘s child. This is murder in as much as the provocation was not given by the
child, and the death of the child was not caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation fires a pistol at Y, neither
intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z.
Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A excited to sudden and violent passion by the arrest,
and kills Z. This is murder, in as much as the provocation was given by a thing done by a public
servant in the exercise of his powers.
(d) A appears as a witness before Z, a magistrate, Z says that he does not believe a word of A‘s
deposition and that A has perjured himself. A is moved to sudden passion by these words and kill
Z . This is murder.
(e) A attempts to pull Z‘s nose. Z, in the exercise of the right of private defence, lays hold of A to
prevent him from doing so. A is moved to sudden and violent passion in consequence and kills
Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the
right of private defence.
(f) Z strikes B, B is by this provocation excited to violent rage. A, a bystander, intending to take
advantage of B‘s rage and to cause him to kills Z, puts a knife into B‘s hand for that purpose. B
and Z with the knife. Here B may have committed only culpable homicide, but A is guilty of
24
murder.
After generally laying down the normal cases in which the presence of certain elements would
convert culpable homicide into murder,the section next states certain exceptional circumstances
the presence of which may reduce murder into manslaughter. Those exceptions are briefly the
following:-
I-Provocation;
II=Private defence;
III-Exercise of legal powers;
IV-Absence of pre –meditation; and
V-Consent
I-Provocation
The most important of these exceptions is undoubtedly provocation. Law views with lenience the
man who was provoked to do the greatest harm to another, under circumstances in which he
himself has lost the control of his mind. ``Provocation is some act or series of acts, done by the
dead man to the accused, which would cause in any reasonable person, and actually causes in the
accused, a sudden and temporary loss of self – control, rendering the accused so subject to
passion as to make him or her for the moment not master of his mind. ``Devlin, J., in Duffy 1949
1 All E.R.P.932. But in order to entitle a person to avail of this defence he must show that
(1) there was provocation grave and sudden, the effect of which was
(2) to deprive the accused of the power of self-control and
(3) the person killed by him wad either the person who gave the provocation or some other
person whose death the person provoked caused by mistake or accident.
Provocation is an excuse only when the accused is thereby deprived of the power of self –
25
control. In other words it ought to be distinctly shown not only that the act was done under the
influence of some feeling which took away from the person doing it all control over his action
but that feeling has an adequate cause. The provocation must be adequate and the violence used
must be in proportion to the provocation and the act causing death must have been done by the
accused during the period when he was suffering from want of the offence will not be mitigated.
The test to see whether the accused acted under grave and sudden provocation is again the test of
a reasonable man in law as in torts.
In Mancini v. Directors of Public Prosecutions33 . Viscount Simon said thus: ``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. The test to be applied in
that of the effect of the provocation on a reasonable man, 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 sufficient interval has elapsed since the provocation to allow a responsible
man time to cool, and
(b) to take into account the instrument with which 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 punishment must bear a reasonable relationship to the provocation if the
offence is to be reduced to manslaughter.``
In this case Mancini was convicted of the murder of one Distleman, his story being that
33
1942 A.C. 1
26
Distleman and Fletcher had attacked him (Distleman having a penknife in his hand)and that he
had used his two edged dagger type knife in self–defence . Mancini‘s appeal to the House of
Lords was based on the failure by the trial judge Macnaghten J. to direct the jury on
manslaughter. The House Of Lords unanimously dismissed the appeal.Lord Simon again
remarked in Holmes v. Director of Public Prosecutions34thus :-‗‘the whole doctrine relating to
prosecution depends on the fact that it causes, or many cause, a sudden and temporary loss of
self-control whereby malice, which is the formation of an intention to kill or to inflict grievous
bodily harm is negative. Consequently, where the provocation inspires an actual intention to kill
or to inflict grievous bodily harm, the doctrine that the provocation may reduce murder to
manslaughter seldom applies. Only one very special exception has been recognized,viz.,the
actual finding of a spouse in the act of adultery.‘‘
The principle has been lucidly stated by Lord Goddard, C.J. OF England in Duffy’s case35,in this
case the accused , a wife has been subject to brutal treatment by her husband . On the night of the
offence there was quarrel between husband and wife and blows were struck. The accused wished
to take their child away but the husband prevented her. Then the accused left the room for a short
while changer her clothes and eventually when her husband was in bed she return with a hatchet
and a hammer and with both of which she struck him.The husband died. In the subsequent trial
for murder,the accused wife raised the plea of provocation but that was rejected and she was
convicted of murder. Lord Goddard said thus :‗‗provocation is some act or series of acts done by
the dead man to the accused which would cause in any reasonable person,and actually causes in
the accused subject to passion as to make him or her for the moment not master of his
mind……..‘‘
34
1946 2 All.E.R.124
35
1949 1 All E.R.932
27
Another English decision of the House of Lords on the crime of reasonable standard is that of
Bedder v. Director Of Public Prosecutions36.The appellant who was sexually impotent
attempted in vain to have intercourse with a prostitute,who jeered at him,hit and kicked him.He
then stabbed her with a knife and killed her.Accused was held guilty of murder.The House of
Lords laid down that the test to be applied in determining whether there had been provocation
sufficient to reduce the homicide from murder to manslaughter was that the effect of the alleged
provocation on the mind of the reasonable man and in applying this test hypothetical reasonable
man did not have to be tested notionally with the physical peculiarities of the accused.
The modern tendency is undoubtedly to lay more and more emphasis on the objective test,rather
than the subjective is clear from the earlier decision of the Court Of Criminal Appeal in R. v.
McCarthy37 in 1954.These principles although laid down in English decisions will undoubtedly
be of great assistance to the indian courts,in the decision of cases falling under sections 299 and
300 of the Indian Penal Code with particular reference to the plea of provocation.
Anger is a passion to which good and bad men are both subject and law has rightly adopted the
view that mere human frailty and infirmity ought not to be punished with equal severity,ferocity
and other evil feelings.
In Bahadur’s case38,the deceased was having an intrigue with the accused‘s wife for a long time
and on one occasion even went to the extent of singing certain provocative songs declaring that
he had such dealings with the accused‘s wife.The accused thereupon immediately killed him and
he was held guilty only of culpable homicide not amounting to murder under exception I of
S.300 I.P.C.
36
1954 All Eng. R.,Vol.2,p.801
37
1954 2 Q.B. 105
38
1935 A.I.R. Pesh 79
28
In Mahmood (appellant) v. The state(respondent)39 ,Allahabad High Court held that there a
person has been falsely accused of theft of money and as a consequence of loss of temper he kills
accused by stabbing him;he is guilty of the offence of murder and not of culpable homicide .The
court held that the mere accusation of theft would not in the case of a normal man constitute such
a provocation as to justify his killing another .OAK,J.said thus:-‗‗ in order to bring the case of
the accused under exception I to S.300 I.P.C.he has to establish the following ingredient:
(1)the provocation was sudden,
(2)the provocation was grave,
(3)loss of self control
The word sudden involve two elements. Firstly,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 a man is killed six hours after the provocation,it is not a case of
sudden provocation.
Dhavan J. said that in deciding whether the provocation was grave enough to cause loss of
control of the mind in the accused,the standard of a reasonable man is not correct.The better and
more precise test would be that of a normal person.
39
1961 All Law Reports part IX Vol.3 p.250
29
CONCLUSION
The object of the defence of provocation is to mitigate punishment in order to make allowance to
human frailty;and the inquiry must necessarily be confined to that factor alone. To allow the
defence,when normally it is not available,on the ground that the conduct of the victim was not
fair or proper,is to shift the very basis of the defence.The defence is to be used as a shield for the
accused and not as a sword against to the victim. It is not meant for disapproving the conduct of
the victim ,or for censuring the attitude of the deceased.It is but natural that the defence of
provocation to a charge of murder would require far more exacting standards than those
demanded in respect of other offences of lesser gravity.In any matter involving an inquiry as to
the nature of a homicide,the circumstance of provocation will be of considerable importance.The
defence of provocation in respect of murder becomes relatively more important.Further the
requirements of the defence of provocation in respect of other offences are identically similar to
some of those essential in case of murder.Therefore,it is proposed to discuss the various aspects
of provocation as a defence to a charge of murder ,as provided by Exception I to Section 300.The
discussion,would be applicable, mutatis mutandis,to such other areas of the Code where
provocation is specifically allowed as a defence.Considering the importance of the defence in
case of murder,one would reasonably expect a higher degree of clarity and precision in the law
on the topic.Unfortunately,despite the codification of the law,and despite the long respite of
hundred years for the interpretations of the law to settle down,considerable position of the law is
yet, to borrow the expression from Russel,in a state of ‗bewildering uncertainity‘.One main
reason for this unsatisfactory position of law would be found in tendency of the Indian judges to
follow English precedents rather indiscriminately.Another major contributory factor to the
present unhappy state of law is the acceptance of the objective standard –the standard of
30
reasonable man-in assessing the seriousness of the provocation when pleaded as a defence to a
charge of murder.Lastly,for several reasons, certain aspects of the extent defence of provocation
still remain ambiguous,and are awaiting authoritative clarifications.
The court observed in the case of Nanavati,K.M. v. State of Maharashtra40,......‗‗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.‘‘
40
A.I.R. 1962 S.C. 605,at p.630
31
BIBLIOGRAPHY
www.lawteacher.net
www.scconline.com
en.m.wikipedia.org
www.livelaw.in
www.manupatra.com
General principles of criminal law by Dr. K.N. Chandrasekharan Pillai
Criminal law by P.S. Atchuthen Pillai , Eighth Edition
indiankanoon.org
www.ptinews.com

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JAMIA MILLIA ISLAMIA

Grave and Sudden Provocation:An analysis as defence with

respect to provisions of Indian Penal Code

SYED AQUIB ALI SEMESTER 3, YEAR 2

JAMIA MILLIA ISLAMIA

who have directly and indirectly guided me in writing this assignment.

and indirectly to complete our assignment.

. Grave and Sudden Provocation:An analysis as defence with respect to provisions of

Indian Penal Code

. No grave and sudden provocation:

. Legal consequences of murdering someone out of grave and sudden provocation.

. What amounts to Murder according to the Indian Laws

. When Culpable Homicide is not Murder

. Death caused due to grave and sudden provocation

. Nanavati Case: Three Shots that shook the Nation

. Difference between Murder and Culpable Homicide

gradations of punishments.In fact,it has been almost universally recognized as an extenuating

circumstance justifying reduction in punishment;and in a few countries,it is even made an excuse

different offences,but even in respect of the same offence,namely,murder,it operates in diverse

culpable homicide from amounting to murder.

not lead to such enourmously divergent results.

In order to invoke the operation of provocation it is necessary that the provocation is

self-control by grave and sudden provocation‘‘.

man lose his self-control.2When a person is suddenly confronted with grave

provocation,normally the consequential loss of self control is almost instantaneous.Naturally,if

depend upon the mental set-up of the particular accused.

done unexpectedly or without warning,abrupt,abnormally rapid,hurried3.‘‘

offences like Murder,voluntarily causing hurt(grievous or simple),using criminal force,and

assault.4However,the Indian courts,while exercising the discretion in awarding punishments,have

reference to provocation at all. If it is desirable to consider provocation as a defence in case of

suitably. No doubt, courts have considered provocation as a mitigating circumstance even in

punishment on the basis of weapons or means used.Further,in order to decide whether

And,as counterpart of this,Sec.358 mitigates the punishment if that offence is committed on

offence contemplated by sec.355 is committed on such provocation as is referred to in that

control.The court,however,considered that if the power of self-control remained unimpaired by

the provocation,the offence would invite enhanced punishment.21

falling under cl.4 of sec.300),hurt(ss.323,324),grievous hurt(ss.325,326),the onus is on the

preceding paragraphs-(i)Provocation,in practice,has been generally looked upon as a mitigating

circumstance.Therefore,it is unnecessary ,except in case of murder,to make specific provisions

recognizing provocation as a mitigating circumstance may be made in the chapter on

punishments28.(ii)Alternatively,existing provisions that lack consistency and symmetry,should at

least,be suitably modified so as to secure uniformity in the operation of the defence of

(1)That the accused received provocation;

(2)That the provocation was (a) grave, and (b) sudden;

(3)That he was deprived by the provocation of his power of self-control;

according to the facts and particular circumstances of each case.

background of the society to which he belongs.

the death of any other person by mistake or accident.

lathis.The interval was sufficient to cool down.

provisions of Exception 1 to Section 300.

culpable homicide not amounting to murder.

provocation under the circumstances.

No grave and sudden provocation:

cases is condecension to the frality of human nature.

the punishment from 6 years‘ rigorous imprisonment to 3 years‘ rigorous imprisonment.

deceased. The deceased was the father of the appellant.

immoral conduct of the deceased.

Section 304, Part I.