The Supreme Court of India, in its decision in Kandaswamy Ramaraj v. The State by Inspector of Police, CBID (MANU/SC/1864/2019) seems to have digressed from the law set by the precedents and has thereby, considered short-temperedness of a person as a decisive factor while ascertaining whether that person is entitled to the benefit of grave and sudden provocation i.e. exception 1 to Section 300 of the Indian Penal Code, 1860 ( “IPC”).
The pronouncement is in consequence of the criminal appeal filed by the Appellant aggrieved by the order a Single Judge of Madras HC, who had upheld the conviction of the Appellant under Section 302 of the IPC, wherein the Accused, a retired army officer, was convicted for having shot an urchin who attempted to pluck some mangoes and almonds from his defense enclave and sentenced him to imprisonment for life and a fine of Rs. 50,000/-.
Whereas, the Apex Court opined, by paying due regard to the temperament of the Appellant, as gathered upon evidence, in the course of the frequent run-ins of these children for plucking almonds and mangoes,
“…that the offence in question was committed by the Appellant while he was deprived of power of self -control as a result of the provocation given by the children and therefore, it can be inferred that there was no calculated intention or pre meditation for committing the offence.”
and thereby, the said appeal was partly allowed and it was held that the offence committed by the Appellant may be given the benefit of Exception 1 to the offence of murder. The court further held that the act of the Appellant falls squarely within the ambit of the Exception 1 to Section 300 and therefore the Accused must be convicted under Section 304, Part II of the IPC and not Section 302.
Grave and Sudden provocation operates as an exception to the offence of murder as defined in Section 300 of the IPC. It mitigates the offence of murder to culpable homicide not amounting to murder. The essentials for the applicability of the exception are:
- The provocation must be grave and sudden
- Such provocation must be given by the deceased
- The offender, by virtue of such provocation, commits the act whilst being deprived the power of self-control
- The offence must be committed in continuance of the said provocation
- The offender must have caused the death of the person who gave the provocation or of someone else either by mistake or accidentally.
Due consideration shall be given to the explanation appended to the exception which states that in order to ascertain whether the degree of provocation of grave and sudden enough as to prevent the offence from amounting to murder is a question of fact.
Therefore, it can be concluded that it is the facts of the case that hold immense importance while deciding upon the grant of the said exception to the Accused.
In the case of K.M Nanavati v. State of Karnataka (MANU/SC/0147/1961), the court provided that a test for “grave and sudden provocation” has to be applied on a reasonable man who belongs to the same class of society as the Accused and if is placed in the situation in which the accused is placed would be so provoked to lose his self -control.
In KM Nanavati, the court also made reference to “The scope of doctrine of provocation” as asserted by Viscount Simon in Mancini v. Director of Public Prosecutions,  AC 1, which states thus:
“Not all provocation will not commute the crime of murder to that of manslaughter. He further states that the provocation shall be such as to temporarily deprive the offender of his power of self-control and it is the result of which he commits the unlawful act which causes death.”
Furthermore, by relying upon the ruling of Court of Criminal Appeal in Rex v. Lesbini  3 KB 1116, wherein it was expressed that the test shall be applied on a reasonable man so that a person who is usually excitable or pugnacious is not entitled to rely on provocation which would not have led an ordinary person to act as he did.
Also, the court in the above judgment provided for considerations of particular importance while applying the text, it includes:
- To consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man to cool;
- The mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.
Consequently, the case of Arun Raj v. Union of India (MANU/SC/0383/2010) holds importance. The Supreme Court herein remarked that ‘the provocation much be such as will upset not merely a hasty, hot-tempered and hypersensitive person but also a person of calm nature and ordinary sense.’ Furthermore, the reasoning which backed such observation was that the exception so created was by taking into consideration situations wherein a person with normal behavior reacting to the given incidence of provocation and therefore, the protection of the said exception is extended to a normal person acting normally in a given situation.
Therefore, it can be inferred that the said exception accommodates the situations wherein a reasonable man, i.e. a normal person acting normally in a given situation, reacts to the incidence of provocation and does not extend to a usually excitable, pugnacious or hypersensitive person.
Further, in the case of Surain Singh v. State of Punjab, the apex court, while relying upon the observations made in the case of Budhi Singh v. State of Himachal Pradesh (MANU/HP/0859/2017), reiterated that ‘the application of the said exception is contingent upon the facts of each case and therefore, is not of universal application. It provides that a fine distinction shall be made between sudden and grave provocation which results in sudden and temporary loss of self-control and the one which inspires an actual intention to kill.’
Also, it shall be kept in mind the provocation shall not only be sudden but grave also. Grave provocation, as defined for the purpose of Exception 1, is a provocation wherein judgment and reason take leave of the offender and violent passion takes over, which was stated in B.D Khunte v. Union of India.
For further elucidation, reference shall be made to the 1972 decision of Gyanendra Kumar v. State of U.P (MANU/SC/0110/1971), wherein, it was contended that the Accused had a bad temper and he must have fired the shots under grave and sudden provocation. The apex court, in the said case, held that there was no question of grave provocation much less a sudden provocation and hence, it was made clear that the temper of the accused cannot be used to reduce the benchmark for the grant of the exception.
Drawing analogy in the instant case, it can be said that even if the Accused is of an irritable temper, the very usual act of the boys of plucking the fruits cannot be said to provoke the offender much less a grave and sudden provocation to the extent of shooting the deceased.
Critical Analysis of the Judgment
The Supreme Court while considering the appeal noted that it is coherent from the evidence before the court that it is usual for the boys residing in the adjoining colony to enter the defense area to pluck fruits and as to the temper of the Appellant, it has been deposed by the domestic helper of the Accused that he was a short-tempered person and even used to chase the boys who used to jump into the defense compound to pick almonds.
The bench, subsequent to the perusal of the adduced evidence, by giving due regard to the temperament of the Appellant, the army officer held that he committed the offence whilst being deprived of the power of self-control and had no calculated intention to kill, thereby entitling the Appellant to the said exception.
Therefore, the question, which the decision puts forward, is whether ‘temperament’ can be a relevant factor while deciding upon the grant of grave and sudden provocation.
Bearing the principles elucidated by the Supreme Court in these numerous cases, it can be said that the reasoning of the court is flawed on the lines that keeping into consideration the facts of the case, it can be inferred that the act of the deceased was not as such to induce a grave provocation.
More importantly, by ruling ‘temperament’ as a decisive factor, it can be said that the Apex Court has digressed from the law set out in the precedents and therefore, subsequent to the said decision, the benefit of the said exception has been extended to even a short-tempered person. This amounts to the departure from the set precedents, which is not permitted save for compelling and convincing reasons, which the author in the instant case, finds neither.
Also, if this becomes the rule, it would imply that ‘a bad-tempered man would be entitled to a lighter verdict of manslaughter whereas a good-tempered one would be convicted for murder’, which was previously asserted as a word of caution in The King Rex v. Lesbini, (1914) 3 K.B. 1116.
Accordingly, the said judgment seems to be per incuriam and bad in the eyes of law and therefore, deserves to be overruled by the decision of a larger bench.
The article has been written by Isha Choudhary
This article was first published in the Blog namely The Criminal Law Blog