Further Dilution of the Grave and Sudden Provocation Test?

 [For other posts on similar themes, see here]

The Supreme Court delivered an interesting judgment last month in Markash Jajara v. State of Assam & Anr. [Crl. Appeal No. 3405 / 2023, decided on 03.11.2023]. It was an appeal against conviction by the trial court and sustained High Court for murder, where the deceased was the son-in-law of the convict. There were no witnesses, and the case rested on evidence of persons who came to the post soon thereafter and recoveries of weapons. This included the daughter of the convict and wife of the deceased, who stated her father had confessed that he had killed her husband.

The Supreme Court did not acquit, but changed the conviction from one for murder to one for culpable homicide not amounting to murder. It did so being convinced that the acts of the convict were covered by the First Exception to Section 300 of the Penal Code 1860 stating that "culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death." An Explanation to this Exception states that whether the provocation was grave and sudden is a question of fact. What this means in the language of trial, is that the accused must claim this defence during trial by cross-examining witnesses, giving answers during the examination done not on oath, and lead defence evidence to establish that these facts existed.

What led the Court to conclude that there was grave and sudden provocation was the testimony of the wife and daughter, P.W.6, who stated in cross-examination that her father killed her husband because the latter was an alcoholic and used to quarrel with her and the appellant convict. This prompted the following observations: 

"16. It seems to us from the version of P.W.6 that the deceased was an alcoholic and he used to misbehave not only with his wife but also with her family members. This version deserves appreciation in its right perspective. Such being the conduct of the deceased, the appellant’s only concern was to protect the life and dignity of his daughter, who was his only child. Reading the evidence on record, it is perceived that the appellant just wanted to create some kind of psychological fear and restraint in the deceased’s mind, so that he could no longer assault or humiliate the appellant’s daughter. The appellant and the deceased were the only ones present in the house at the time of occurrence. The daily consumption of liquor by the deceased was an apparent factor that exhorted the appellant to assault the deceased not with an intent to commit his murder but only to force the deceased to mend his ways and mend his drinking problem. The appellant seemingly attacked the deceased without any intention to commit his murder. It was rather a crude attempt to forcibly change the deceased’s habits and help the appellant’s daughter to have peaceful and dignified life.

17. The appellant’s motive at best was to prevent the deceased from misbehaving with his daughter after consuming alcohol. The manner in which the occurrence appears to have taken place inside the house, does indicate that the appellant lost his self-control on account of persistent provocation and suddenly thrashed his son-in-law with the bamboo stick. It is a case where provocation seems to be brewing up since the deceased shifted to the appellant’s house. It acquired enormous gravity with each recurrence of humiliating stances of the appellant’s daughter. The fatal occurrence was seemingly the final culmination of loss of the power of self-control. The fact that the deceased was living as a `ghar javai’ with the appellant, sufficiently indicates that the appellant did not have any pre-meditated intention to commit the murder of his son-in-law. But for the continuous harassment of the appellant’s daughter by the deceased who was a habitual drunkard, the appellant would not have lost his senses suddenly. The simmering discontent of a frustrated and hapless father unfortunately led him to strike the deceased with a bamboo stick. The series of provocative acts attributable to the deceased indeed laid the foundation of sustained provocation." [Emphasis supplied]

With respect, the Court has resorted to rhetorical flourishes to try and elide over the serious gaps in the evidence when it came to successfully claiming the case was covered by the Exception to Section 300. This becomes clearer when we look at the High Court judgment which had been assailed. Reading the two together, it appears that besides the general statement that the deceased was an alcoholic, there was no evidence led to suggest: (i) that there had been any quarrel on the day of the incident, (ii) that the deceased had consumed alcohol on that day, (iii) that the appellant himself sought to claim that he killed his son-in-law because of some provocation in his statement made under Section 313 of the Code. The statement of the wife and daughter P.W. 6 was that "my father murdered my husband as he used to ill-treat me after consuming alcohol", which did not establish any quarrel or even consumption of alcohol on the day. 

A defence which rests on leading evidence through the trial was successfully invoked by the Court despite the sheer absence of such evidence on the record. Perhaps aware of this, the Court shifts its perspective to present us with a picture of a "frustrated and hapless father" nursing "simmering discontent" to justify its invocation of the Exception. There are two problems in this reasoning on display in Paragraph 17. 

First, at places the Court seems to suggest that the loss of self-control is what was 'sudden' ["... on account of persistent provocation and suddenly thrashed in son-in-law"]. This is to conflate the Exception of grave and sudden provocation with the separate Exception to Section 300 that covers 'sudden fights'. What had to be sudden here was not the act of the appellant, but the provocation of the deceased. [This point had been discussed on the Blog earlier]

Second, the Court resorts to a 'but for' reasoning to satisfy the chain of causation required to trigger the Exception ["But for the continuous harassment of the appellant's daughter ... the appellant would not have lost his senses suddenly."]. Unfortunately, 'but for' is not what the Exception requires, because it also allows for conclusions such as "but for the marriage of the couple, the accused would not have lost his senses". The but for test allows the chain of causation to be stretched too far back in time, rendering the suddenness of the provocation immaterial. This does not mean that Indian Courts do not consider past acts and apply so narrow a lens as to exclude everything but for the immediately proximate act. The law does account for persistent provocation to some extent, but requires that a chain of causation be established linking the past acts of the deceased to some immediate provocation. Such an approach was demonstrated in another recent decision of the Supreme Court, Dauvaram Nirmalkar v. State of Chhatisgarh [Crl. Appeal No. 1124 of 2022, decided on 02.08.2022].

Markash Jajara can be seen as opening the door for a "grave, persistent or sudden provocation" defence as opposed to a "grave, persistent and sudden provocation" defence. However, it is not certain that courts below will apply it in such a manner, given the weight of precedent favouring the restrictive view. It may remain confined to the unique facts that presented themselves before the Supreme Court in this case. Or rather, the willingness to arrive at a conclusion on the strength of motives despite the absence of necessary facts being proven by evidence.