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.

Guest Post: Exception 4 to Section 300 - Element of 'Sudden Fight' Lost?

(This is a guest post by Harshit)

Introduction

Under the Indian Penal Code 1860 (IPC), exception four provides a defence of 'sudden fight' to murder. This defence finds its genesis in the common-law defence of mutual combat which reduced murder to manslaughter in cases where death was the result of an injury caused in a sudden fight where both parties were on an equal footing (with no party taking undue advantage of the other). Although the mutual combat defence has not survived in common law jurisprudence, sudden fight still finds its place in the IPC.

In this post, I critically analyse the interpretation of 'sudden fight', used in the exception to Section 300. First, I argue that the term should be interpreted considering the underlying assumption of presence of equal footing between the parties. Second, I argue that the Supreme Court of India's application of the exception goes against the very assumption of equal footing, and the Court has in many cases seemingly done away with the requirement of 'sudden fight' itself. Lastly, I conclude by arguing in favor of a statutory amendment to correct the position. 

The Defence of Sudden Fight: Rationale and Scope

This section establishes the underlying rationale behind the exception and draws the differences between the exceptions of sudden fight and that of provocation to determine the underlying assumptions and scope of the former. I then argue that the term sudden fight should only be interpreted to mean mutual provocation and blows from each side, as any alternative interpretations go against the underlying assumption of the exception.

Establishing the Rational and Assumptions Underlying the Exception

In Macaulay’s draft of the IPC, there was no mention of the mutual combat or sudden fight exceptions. I found it a strange omission considering that the mutual combat exception was very well established in common law jurisprudence at that time. Presumably, then, the sudden fight exception was added to the IPC by the Select Committee(s); unfortunately, since I have been unable to access records containing that Committee's deliberations, I cannot decisively comment on what might have been the rationale behind the inclusion. 

It can be argued that the doctrine of comparative liability that underlines the justification for other partial defences also operates as the underlying principle of the defence of sudden fight. The doctrine of comparative liability suggests that the wrongful conduct or consent of the victim has an effect on the balance of rights and responsibilities between the offender and victim, a result of which is mitigation or exoneration of the offender's liability. For example, in exception one to Section 300, the victim's conduct which provokes the offender acts as a mitigating factor. Similarly, in exception four, it is the element of sudden fight which acts as a mitigating factor and also justifies its inclusion as a separate defence in the IPC. 

After having established this rationale behind the exception, it is important to determine the extent of comparative responsibility of the victim envisaged by the exception of sudden fight. For this, it is imperative to look at the wording of the section given in IPC.

“Exception 4: 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 elements such as undue advantage or cruel manner points to an implication that the drafter envisaged the exception to be applied in only those cases where both the parties are situated on an equal footing, more or less. The explanation in the section further supports this argument by providing that it is immaterial as to who offers the provocation or commits the first assault. The explanation implies that the defence of sudden fight applies to only those cases in which both the parties are equally blameworthy for instigating the assault. It might be the case where one party starts the fight or offers provocation, but without the conduct of the other party, the fight would not have aggravated to an extent where injury is caused. So, there is an element of mutual provocation and aggravation when it comes to sudden fight, where blame cannot be apportioned to one party. 

The difference between exceptions one and four further substantiates the argument that parties need to be on an equal footing. The main difference between the two exceptions is that of a unilateral and bilateral provocation. While exception one requires provocation to be unilaterally given from the side of the victim, exception four provides for a bilateral provocation where every blow or word uttered constitutes a fresh provocation, and hence the blame of provoking another cannot be imposed on a single person. 

It can be concluded that exception four operates on an underlying assumption that parties to a fight need to be on an equal footing more or less and the blameworthiness for provocation cannot be attributed to only one party.

Meaning of the term 'Sudden Fight'

The term 'fight' does not find a definition in the IPC, but in common usage, the word is used to describe combat between two or more people. The definition of fight as combat between two persons can also be deduced from the common law defence of mutual combat which defines fight as “when parties come to blows or a combat ensues”. It is important that 'fight' is understood in this sense of a bilateral transaction, because any alternative understanding of the word would go against the assumption of the presence of equal footing and blameworthiness between parties. 

Further, it is also important to interpret 'fight' as something more than a verbal quarrel. It is because the usage of two different terms i.e., 'fight' and 'quarrel' in the section side by side suggests that the legislative intent was to treat the terms as mutually exclusive. As 'quarrel' has been defined as an altercation of words and gestures in Black’s Law Dictionary, it is thus clear that by adding 'fight', the framers implied something more than a mere quarrel. 

The Supreme Court in Sridhar Bhuyan v. State of Orissa (2004; 2J bench) rightly acknowledged the rationale and assumptions underlying the fourth exception and held that it should only be applied to those cases where parties stand on an equal footing and the entire blame cannot be attributed to one party. The court clearly distinguishes exception four from exception one, and so defined 'sudden fight' as “mutual provocation and blows from each side” and “combat between two and more persons whether with or without weapons”. The court also implied that the term suggests something more than a quarrel by linking the latter to 'verbal altercation'.

Lost Element of 'Sudden Fight': Analysing Indian Supreme Court Decisions

While the Supreme Court has mechanically reiterated the understanding of term 'sudden fight' as given in Sridhar Bhuyan, the standard judicial practice has been to forget this while applying the exception to different facts. Courts have applied the fourth exception to a significant number of cases that do not even involve an exchange of blows or any violent act by the victim. Even though the exception juxtaposes 'sudden quarrel' and 'sudden fight', courts have interpreted any sort of mutual exchange of words, gestures, or abuses, as 'sudden fight' to apply the exception.

One of the most egregious examples where the court wrongly applied the exception was Golla Yelugu Govindu v. State of Andhra Pradesh (2008; 2J bench). In this case, the accused killed his wife by inflicting two injuries using a sickle, after a quarrel between between them because her parents refused to give money which he demanded to buy an autorickshaw. There was no evidence to show that there was an attempt or threat of violence from the wife, but the court still applied the exception, ironically referring to the understanding in Sridhar Bhuyan. Applying the fourth exception in this case demonstrates a complete failure to distinguish between elements of 'fight' and 'quarrel'. 

Similarly, in K. Ravi Kumar v. State of Karnataka (2015; 2J bench), there was a verbal quarrel between a wife and husband on the issue of the wife accompanying her husband to his ill father’s house. The appellant purportedly lost mental control and stabbed his wife, and subsequently set her on fire, causing her death. Here, too, the court applied the fourth exception on the ground that the injury was inflicted without any premeditation as a result of a suddenly heated exchange of words. Again, there was no proof of any exchange of any form of violence by the wife.

In Surain Singh v. State of Punjab (2017; 2J bench), the appellant-accused, while being in the court premises, took out a kirpan and inflicted injuries upon the complainant and his relatives due to which the relatives of the complainant died. Despite the fact that the injury was inflicted upon a mere quarrel and there was no exchange of blows from the other side, the court upheld the application of exception; again, while quoting Sridhar Bhuyan.

Another case is Ranbir v. Delhi (2019; 2J bench), where the court gave the benefit of exception four to the accused who strangulated his wife with a saria. The wife took some money out of her husband's wallet. He was drunk, got angry, and strangulated her, allegedly in the heat of passion. The factual narration nowhere mentioned that there was an exchange of blows or other forms of violence from the wife's side whatsoever. Despite this, the court upheld that there was a sudden fight and the injury was inflicted without any premeditation. 

All of the above-mentioned cases show how the judiciary has conveniently ignored the element of 'sudden fight' while applying the fourth exception, often whilst quoting from Sridhar Bhuyan where the exception was properly understood. 

Impact of Such Decisions and The Way Forward

The major impact of such application of the exception by the Supreme Court is that it blurs the distinction between 'provocation' and 'sudden fight'. Although it is possible that circumstances could arise where both exceptions could be applied, 'sudden fight' cannot come into play unless the accused and the victim have engaged in a fight; if there is no mutual provocation and blows from each side, the case falls under the ambit of provocation and not a sudden fight. However, the Supreme Court’s application of exception four on many an occasion completely ignores this distinction. 

The plausible reason for a defence lawyer to argue that these cases fall under exception four is because exception one to Section 300 IPC provides for a higher standard of provocation i.e., grave and sudden provocation. The Supreme Court’s application of exception four in these cases not only ignores the statutory requirement of exception four and its rationale but also provides an alternative for those offenders who would have not gotten the benefit of any other exception. 

The problematic application of exception allows cases of cold-blooded murder, not covered under any other exceptions, to take the benefit of this defence by simply putting them under the ambit of murder committed in the course of a sudden fight. Therefore, there is an urgent need to correct the position of law by limiting the application of exception four to only those cases which involve the element of 'fight'. 

Since the Supreme Court, despite recognising the correct explanation and scope of exception four to Section 300 IPC in Sridhar Bhuyan, has failed to correctly apply it in various cases, it suggests there is a need for the legislature to amend the clause by explicitly limiting its scope to only cases where there is an exchange of blows or any kind of violence between offender and  victim. Further, as most of the cases where the exception has been wrongly applied pertain to the cases of domestic violence, an illustration can be added to guide the court in the decision-making process. The illustration could be:

X asks his wife Y to accompany him to his father’s place. Y refuses as a result of which a quarrel starts between X and Y. X, having lost his mental balance, stabs Y and subsequently puts her on fire. This amounts to murder unless Y's words constitute grave and sudden provocation, there being no exchange of blows or any kind of violence by Y.

Guest Post: Lessons From Abroad — R v Tran and Provocation in India

(This is a guest post co-authored by Varshini Sudhinder and Jibraan Mansoor)

SATURNINUS: Because the girl should not survive her shame, And by her presence still renew his sorrows; 

OTHELLO: I will chop her into messes! Cuckold me?; 

Introduction

Shakespeare’s cuckold has been a prominent theme in various works such as, The Merry Wives of Windsor, Cymbeline, and The Winter’s Tale. But what was supposed to be a literary feature has often made inroads into the halls of justice. For instance, in R. v. Mawgridge [(1707) Keil. 119], Judge Holt wrote,“[A] man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property”. It is not uncommon to find Indian courts reaching the same conclusions. For instance, when in C. Narayan (1958 Cri LJ 476) a wife was strangled to death by her husband after she confessed her adultery, and in Murugian (AIR 1957 Mad 541) when a husband killed his wife in response to her defiance about her adultery, in both these cases courts agreed that this was not murder as the accused had acted under provocation.

In this post, we attempt to re-complicate some of these conclusions. Borrowing from the Canadian experience we argue that at the heart of the “provocation for adultery” question rests a need to carefully balance human frailty with considerations of sexual autonomy. The post broadly covers four aspects. First, we briefly explain how Indian law has come to understand provocation and we identify certain issues which remain unanswered. Second, having identified the issue, we discuss the Canadian case of R v. Tran (2010 SCC 58) [Tran], to understand how the Canadian Supreme Court has made attempts to resolve these issues. The third section showcases a possibility of using the Canadian decision to good effect in the Indian Context. Finally, we discuss how Indian courts might consider changes to granting provocation in cases of adultery at a time when adultery is no longer a crime per se. 

Indian Courts, and Provocation as an Exception to Section 300

The statutory text of provocation needing to be “grave” and “sudden” tells us barely half the story; judicial decisions have added a great deal of nuance in applying this test. Stanley Yeo, in his paper, Gravity Of Provocation Revisited, having analysed the Indian experience, suggests that the judicial inquiry into a provocation plea involves first analysing if a “reasonable man” would be so provoked, when placed under a similar situation, to lose his self-control like the accused. After such an examination, and seeing if the accused did the same, we need to trace the fatal blow to the “influence of passion” which arose from the provocation, and not after having sufficient time to “cool down”, to prevent any scope of premeditation.

However, as R.V. Kelkar in his paper, Provocation as a defence in the Indian Penal Code notes, the judiciary has not always clarified things. One of the main reasons for this is the acceptance of the objective standard, that of a reasonable man, to analyse the defence of provocation. Using the “reasonable man” standard can lead to a lot of problems because the associated characteristics of a reasonable man have not remained consistent over time, as courts have acknowledged that obviously no person is ideally reasonable, and in fact is associated with “mistakes” and “defects”.

The canonical Nanavati (AIR 1962 SC 605) highlighted the need for the “reasonable man” to belong to the same class category and social realities, as the accused, to bring within it the “emotional background” of the social class to which the accused belongs. The court associates this reasonable man with certain characteristics, customs, manners, ways of life, etc. Some courts over the years have reinterpreted “reasonable man” to be an “ordinary” or “normal” one. Yeo stresses on the relevance and the importance of doing something like this because all persons are differently placed and come from diverse backgrounds. According to him, an accused’s characteristics may be of relevance either if the provocation was directed at particular characteristics of himself/herself; or, if the accused belonged to a class of persons who tend to possess self-control which is less than others.

Even though the above discussions are important as they recognise the need to account for human frailty, yet they also raise concerns about not allowing sexual autonomy to women. More broadly, they make one wonder that if we allow for the “sudden and grave” provision to be exercised by those in power, then do we completely dismiss the normative horizons that criminal law seeks to achieve by altering individual behaviours? So, will the Indian Jurisprudence allow a defence of provocation to an ultra-conservative Hindu belonging to a culturally sensitive class who murders a Muslim offering Namaaz in front of them? Further, to what extent can psychological factors which do not directly harm one, can become justification for the person to employ the defence of provocation? In order to address some of these questions, at least in the context of adultery, we undertake a comparative jurisdiction analysis, or “lessons from abroad”, by analysing the Canadian Supreme Court in Tran, and try to analyse the applicability of the Canadian Court’s decision in the Indian context.

R v Tran and New Beginnings 

The facts of R v Tran (2010 SCC 58) are straightforward. A man estranged from his wife snuck into their former home to discover her in bed with her new lover. He then flew into a rage, fatally stabbing his estranged wife’s lover with a knife, while also harming his estranged wife with that weapon. While there were various aspects in the decision which have interesting implications — how the court read the facts to understand “sudden” — for our purpose, the court’s assessment of what constitutes as a harm enough to allow for provocation is central. 

The court explains that the “… ordinary person standard must be informed by contemporary norms of behaviour…”, but these must not derogate the fundamental values of equality (the court refers to the Canadian Charter of Rights and Freedoms) and the “accused must have a justifiable sense of being wronged”. The court gives examples of how it would be apposite if the “ordinary person” included the relevant racial characteristics, had they been at the receiving end of a racial slur, but not homophobic characteristics had they been the recipient of a homosexual advance. Furthermore, it held that “there can be no place in this objective standard for antiquated beliefs such as ‘adultery is the highest invasion of property’ nor indeed for any form of killing based on such inappropriate conceptualizations of ‘honour’.”

We see in this decision that the court is making a conscious attempt to limit the attribution of certain characteristics in determining whether provocation took place. More specifically, the Court is acknowledging that they have to balance between accounting for human frailty and justice. It is trying to denude the power differentials that are ascribed to people just by virtue of their birth and belonging, as opposed to individual choices. Furthermore, the court by recognising that the “accused must have a justifiable sense of being wronged”, seeks to highlight that there ought to exist some legitimate harm, wherein legitimate has to be understood as a normative exercise constrained by institutional principles — which was accrued to the accused for the partial defence to be granted. But can we reconcile this approach with the manner in which we historically understand provocation as a category, i.e., if provocation is to be understood as a psychological question accounting for human frailty in the Indian experience, would placing social normative values be a plausible exercise? 

Is R v Tran possible in India?

Botswana’s High Court in State v. Segana Seleke [1974 (1) BLR 102 (HC)] made certain interesting observations about the Indian experience. While the court recognised that the English experience has applied “considerations of social morality to what in the final analysis is a psychological problem”, but in “many jurisdictions in India such a distinction, [issues] based wholly on the question of whether or not a relationship sanctioned and approved by the law exists between the accused and the other party to the adultery, is not countenanced.”

This observation of Botswana's court can be re-affirmed by (Kota) Potharaju [AIR 1932 Mad 25]. Here the accused found his “mistress ... in the arms of a former lover, lest control of himself and stabbed her”. The Madras High Court accepted a plea of provocation and held: “One cannot supply considerations of social morality to a purely psychological problem. The question is not whether the appellant ought to have exercised, but whether he lost control over himself. When a man sees a woman be she his wife or his mistress, in the arms of another man he does not stop to consider whether he has or has not the right to insist on exclusive possession of her person … she is a woman, of whose person he desires to be in exclusive possession and that is, for the moment, enough for him”.

This case was contested in Murgi Munda [(1939) ILR 18 Pat 101], where prevalent custom dictated that any unmarried man and woman may cohabit with each other, but if the woman is impregnated by a man, he must marry her. In this case, the deceased, Gansa, used to be in that kind of a relationship with Bandai, and when he moved away, she and Murgi entered into a relationship. The night when Murgi found Bandai and Gansa together, he killed the latter in rage, and then pleaded provocation in the Court.

Justice Fazl Ali and Justice Agarwal held that they disagreed with (Kota) Potharaju, since, “the mere fact that a person’s desires are thwarted does not in law justify him killing the person who is thwarting him. The provocation which is mentioned in the 1st exception to section 300, Penal Code, is something which is recognized as provocation in law and not merely something which arouses the uncontrollable anger of a particular individual.” Further, “In the case of a wife the position is entirely different. The law recognizes that a husband is entitled to expect fidelity from her”. And in the present case, their relationship was not one where Bandai owed him any form of fidelity. 

Murgi Munda further cited Palmer [(1913) 2 K.B. 29] to justify the need for fidelity in order to explore the nature of relationships which legitimately allow the defence of provocation. Palmer is important since the Court of Criminal Appeal held, “… the relation between the parties was not that of husband and wife, nor was it a case of unmarried persons living together as husband and wife. They were simply persons who were in the position of being engaged to be married. Under those circumstances if the effect of the summing up was to leave the jury under the impression that they could not properly find a verdict of manslaughter we think that it was right.” In both Murgi Munda and Palmer, we notice how the courts are eager to distance themselves from the kind of reasoning seen in Potharaju, as the courts are highlighting that there are certain relations which aren’t socially perceived as being as sacrilegious as others, and hence shouldn’t be entitled to the defence of provocation. Immediately, one suspects of whether the Indian courts are completely treating provocation as a psychological issue to begin with or not. Further, one wonders how Murgi Munda’s decision which relied upon the law recognising the husband’s entitlement of fidelity from his wife, would change after Joseph Shine [AIR 2018 SC 1676].

The second engagement between the High Courts which is relevant for the current issue can be seen by analysing Murugian and Jairam Chandrabhan. In Murugian [AIR 1957 Mad 541], Basheer Ahmed Sayeed J. observed, "But it should be noted that these decisions apply to the society in England and countries of western culture and civilization. It is well known that in western societies, marital laws and violations thereof are looked upon with such (sic) greater latitude and the award of damages in Civil Courts would constitute sufficient redress. Adultery is not made punishable as it is in our country where a more serious view is taken of offences against marital rights." However, in Jairam Chandrabhan [AIR 1959 Bom 463], where the accused murdered his wife as he saw her enter someone else's house and when confronted told the accused that she'd continue engaging in the relationship, the court disagreed with Murugian. The court held that “In our opinion, it would be extremely hazardous to apply the First Exception to Section 300 to a case of the kind we have here merely on the ground that offences against marital rights are made punishable by the law in India ... Bearing in mind the fact that adultery though frowned upon in our country is not uncommon in the village community and bearing also in mind the fact that even before the law made a provision for obtaining a divorce, a customary form of divorce has prevailed in the village communities, it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.”

The court subsequently held that the offence would not constitute “grave and sudden provocation” for the accused to be given the partial defence from 300. Even though the court in Jairam Chandrabhan does not explicitly denounce adultery, it is anxious to allow violation of marital rights from becoming the sole ground for allowing for the partial defence to be granted. So instead of following the reasoning seen in R v Tran, the court tried to ignore the Indian courts’ approach of “cumulative provocation” and held that mere exchange of words between the accused and his formerly deceased wife—completely ignoring the act of adultery itself—couldn’t constitute as “grave and sudden” provocation. Even though Jairam Chandrabhan could be accused of compounding the confusion as it erodes “cumulative provocation”, the importance of this case is a) in its ability to recognise that violation of marital rights might not be enough to constitute provocation and b) given the widespread norm of adultery, the anxiety of male heterosexual violence which might be perpetuated if the partial defence is guaranteed. [Note: Jairam Chandrabhan also becomes important for it subtly challenges the assumption about the various attributes of the “ordinary person” (by questioning the distinction between village communities and western countries), while Indian courts attempt to be sensitive to cultural contexts. However, the implications of this observation are beyond the scope of this post.]

Indian courts have not resolved these questions directly and have more often than not continued to allow for adultery to be a ground for provocation. But from the above discussions, if there is a possibility of social morality becoming the guiding force of what we consider as “provocation” enough, it might be so that today when adultery is no longer a crime following Joseph Shine, instances of adultery in some cases might not be enough to be treated as an exception to 300.

Joseph Shine’s impact on Provocation

The main focus in Joseph Shine was constitutional questions posed by the adultery offence (Section 497 IPC) Even so, the various opinions made some extremely important remarks about how questions of adultery are in essence gendered questions concerning monogamy, sexual subjugation and treatment of women as property. For instance, Chandrachud J. noted that, “throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these”, and further, ”To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.”

While Section 497 IPC operated in clear gendered differentia, it might not be too difficult to claim that provocation as a defence in cases of adultery has empirically more often than not been used by men. By the court recognising that adultery being treated as a harm enough is an impediment to constitutional rights of women, one cannot help but wonder whether allowing adultery to be a provocation “grave” enough, ends up embedding the same stereotypes which allow for exercising control and dominion over a woman’s body? 

We are even more afraid when we take into account the importance that the judiciary has attributed to notions of property over the years. For example, in a case like Muthu, [(2007) 12 SCALE 795] where the victim was killed for merely throwing garbage into the property of the accused, we see the Court allowing provocation to be granted to the defence. Just like Muthu, we are worried that the courts are yet again placing undue premium on conception of property, especially from a man’s perspective, as opposed to recognising or at least deliberating the question of a woman’s control over her autonomous body. 

Framed otherwise, the above discussion leads to two questions: (1) While historically adultery had connotations of property, can we now move to a place wherein we recognise adultery as an autonomous private decision, and thereby limit the attribution of psychological provocation that courts have historically undertaken, and (2) Keeping in mind Palmer, Jairam Chandrabhan, Murgi Munda line of cases and R v Tran, do Indian Courts need to re-assess the question of provocation by recognising the need to balance human frailty with the normative horizons that criminal law wishes to achieve by altering human behaviour? These are both questions which the courts have to engage with seriously, for us to be able to have a just, clearer and more concrete understanding of provocation, as seen in exception to 300.

Guest Post: Grave or Sudden Provocation? The SC Decision in Nawaz v. State

(I am delighted to host a guest post by Mr. Anant Sangal, currently a III Year student of the B.A. LL.B. (Hons.) Program at the National Law University, Delhi)

The Supreme Court of India (SC) recently expanded its criminal jurisprudence by handing down a decision in the case of Nawaz v. The State Represented by the Inspector of Police [Crl. Appeal No. 1941/2010, decided on 22.01.2019]. A Division Bench headed by Shantanagoudar J. (writing for himself and Maheshwari J.) modified the conviction from murder to culpable homicide not amounting to murder. The appellants had been charged for murdering the husband of one of the appellants (Ragila). The prosecution case was that the deceased suspected that his wife and his daughter had illicit relations with the other appellant (Nawaz). One morning, deceased called both the mother and daughter “prostitutes”. 

A quarrel broke out between Ragila and the deceased and as a result, Ragila slapped the deceased. He fell on the floor and both the appellants, thereafter, throttled him with the help of a towel and burnt the body in order to conceal the offence and transported it elsewhere. The appellants were convicted by the trial Court for murder u/s 302 r/w 34 of the IPC, and the verdict was upheld by the High Court. However, the SC held that the appellants were “provoked” by the accused on his usage of the word “prostitute” for his wife and daughter and hence, were eligible to be covered by Exception 1 of Section 300 IPC. This made them punishable u/s 304 Part I instead of (earlier) Section 302 IPC. 

Out of many factors which leave the judgment prone to attack, the ruling does not fall in line with the jurisprudence of the Court which has evolved through a variety of similar judgments. Apart from missing the ‘fit’, the Court also gravely erred in deciding and upholding what was not argued before it as well as in misconstruing the facts. 

Facts and the Fit: Instilling Realist Traditions  

In this judgment, there appear to be two emerging legal flaws, amid a wrong reading of facts by the SC. They are – (1) provocation not being grave and sudden; (2) elapsing of time between provocation and crime. 

To begin with, I would establish the first flaw in the judgment i.e. the need for grave and sudden provocation. Neither merely grave, nor only sudden provocation, attracts the defence of Exception 1. Both these effects must occur together. Contrary to this, Shantanagoudar J. holds that the appellants were “provoked” which lead them to committing the crime. He does not establish the requirements of the provocation being grave as well as sudden. The application of Exception 1 to Section 300 is, therefore, wrong and is not justified. 

In Nawaz, what appears is that provocation was only sudden but not grave. This is because in a fit of sudden provocation, the appellant slapped the deceased owing to which, he fell down. Thereafter, a towel was procured (as there is no discussion about a towel when they were engaged in a verbal quarrel) and the same was ‘thereafter’ used to throttle the deceased. It was held in Kanhaiyalal v. Emperor, that the effect of such grave and sudden provocation must be the loss of self-control. Had it been for loss of self-control for the appellant, the appellant would not have looked for a towel but would have simply proceeded to throttle the deceased using her bare hands, or whatever would have been the immediate possible response. 

What would qualify as grave and sudden provocation has been defined by the SC in BD Khunte v. Union of India & Ors. There, it held that the response to such provocation must be immediate and the cooling-off period must be absent. If the response to the provocation has been preceded by a cooling-off period i.e. where the accused received sufficient time to cool down his anger, the defence of Exception 1 would not be attracted. In this case (Khunte), a jawan killed his superior in the evening because the superior had given him beatings earlier that day. The Court ruled that Exception 1 would not be attracted due to sufficient time as the “cooling-off” period between the provocation and the killing of the superior. Since the act of killing took place after almost 7 hours of the incident, the intention element was present while committing the murder. 

As per Exception 1 to Section 300, the offence would not be a murder when the offender is deprived of the power of self-control by grave and sudden provocation. Therefore, going back to Khunte, counsel for the defendant argued that the provocation continued to remain grave for 7 long hours. The Court rejected this contention, and held that it is impossible for graveness to continue for seven hours, and hence, this defence was rejected by the Court. The failure on behalf of the Court in Nawaz to discuss Khunte is an apparent shortcoming. 

Similarly, in Prabhakar Vithal Gholve v. State of Maharashtra the SC decided that the case fell within the ambit of Exception 1 as opposed to being an offence under Section 302. The dispute there was very minor, and in a fit of rage, the accused-appellant attacked the deceased on her head using a stick, owing to which, she later succumbed to injuries. The injuries proved fatal subsequently. The Court held that the manner of committing the crime as well as lack of a motive clearly prove that the offence is one not under Section 302. Though in this case, there was a break between the provocation and crime, but the Court’s main holding is on the point that the mode of attack was not designed to reflect murder. This is the reason why the defence of Exception 1 was extended to the appellant. 

Subsequently, in Chaitu & Ors. v. State of Uttar Pradesh, where a quarrel arose between two parties over water sharing, one of the parties injured the other in the heat of passion, who succumbed to injuries the next day. The Court extended Exception 1 to cover the case of the appellants and held them liable only for culpable homicide not amounting to murder. However, in Nawaz, the manner of committing the crime, i.e. ensuring that the person dies after being slapped, reflected that the appellant-accused developed the intention to kill and thus, at that point, the element of suddenness was lost. This act of the accused clearly shows that they shared common intent to kill the deceased and they succeeded in doing so. As a result, the Court erred while adjudicating on the graveness and suddenness element of the crime. 

Secondly, in Nawaz some time had lapsed between the provocation and the crime committed. This time period is known as the "cooling-off" period. It is, however, impossible to lay down a hard and fast rule as to when a person should be said to have had time to cool down and thus to be deprived of the benefit of Exception 1. It largely depends on the individual characteristics of the accused as well as on the facts of the particular case. In this context, while discussing the shortcomings of the judgment in Nawaz, the most relevant case is that of Yasin Sheik v. Emperor. There, the appellant got to know his wife's extra-marital affair, hit her, took her to the river bank, and cut her head off. The act was rightly held to be no longer merely homicide by reason of the time which had elapsed. 

If we look at Nawaz, in paragraph 4, the Court says, “Since the deceased did not stop, Accused No. 2 slapped the face of the deceased. Immediately, thereafter, both the accused throttled the deceased with the help of a towel and burnt the dead body to try to conceal the offence. Subsequently, they transported the dead body in a Maruti Car owned by PW 15 and abandoned the body elsewhere.” As per this observation, it seems that after slapping the deceased and before throttling him using a towel, there was a short time-span, where the appellants could have deliberated upon the decision as to what should be done next. However, they proceeded ahead with throttling and murdering him. 

It could also be a case that the deceased did not die immediately upon being throttled. To make sure that the deceased was dead after he was slapped, they not only throttled him, but the body was taken to some place and was thereafter burnt. This clearly establishes that they intended to kill the deceased after he was initially slapped. The cooling-off period appeared twice, so to say. For the first time, it was between slapping and throttling using the towel, and the second time, between throttling and burning his body. Therefore, the Court neglected the existence of this cooling-off period as well and decided the case in its absence itself. 

Conclusion: The Road Ahead 

One problem with the decision in Nawaz is that it could be misused. This is because the Court does not visit any of the precedents which deal with identical issue of law and the judgment harps only on the construction of facts. As an appellate Court of the highest order, the Court has to limit itself to answering the questions of law. This does not mean that interpretation of facts is absolutely forbidden but apart from interpreting the facts, the Court should have limited its role to – (1) interpreting and discussing the law laid down in previous judgments of the SC itself, and (2) interpreting the provision of Exception 1 to Section 300 IPC. However, both elements are absent from the judgment. 

Apart from being legally flawed, Nawaz lays down a dangerous precedent for future courts to adhere to. This is because the case dilutes the exception of grave and sudden provocation by loosely reading the facts of the case, in a manner contrary to existing law. In future, if a similar question arises before any trial court or even a High Court for that matter, it is bound to create confusion as the most recent decision in a long-line of cases stands in opposition to almost all previous milestones.