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Invoking Grave and Sudden Provocation Subjectively: A Slippery Slope

Recently, in the case of Kandaswamy Ramraj v. The Inspector of Police, CBCID (Criminal Appeal no. 259 of 2015), Supreme Court rendered a judgement where the charges of murder against the accused of killing a boy, who plucked fruits from his house, was modified to conviction under culpable homicide not amount to murder by applying the exception of a grave and sudden provocation.

The appellant in the case was a retired army officer who was living in the staff quarters in the defence compound. The compound had many fruit-bearing trees, attracting a lot of urchins who lived in nearby hutments. The deceased who entered the compound to pluck almonds and mangoes was shot dead from point-blank range by the appellant. Considering the fact that it was usual for boys to enter the prohibited compounds to pluck fruits and that the deceased was in fact killed while plucking the fruits, the court went on to frame the question that whether the appellant intended to murder the deceased to decide the applicability of the exception of a grave and sudden provocation. The authors most humbly submit that the court has erred in applying the established standard for the application of exception of a grave and sudden provocation.

The exception of a grave and sudden provocation is contained in Exception I to Section 300 for which a lesser punishment under the relevant part of Section 304 is awarded. In K.M Nanavati v. the State of Maharashtra, the supreme court has expansively discussed the law pertaining to provocation and observed that “whether a reasonable man belonging to the same class of society, placed in a situation in which accused was placed would be so provoked as to lose self-control”. For the understanding provocation, Lord Diplock in Phillips v. R. has laid down an objective test of whether the reasonable man would have lost his self-control and would he have retaliated in the manner offender did has to be applied. The manner of resentment must constitute a direct relationship to the degree of provocation. It is important to take into consideration the instrument with which the homicide is executed. Retaliation done by a simple blow in the heat of passion induced by provocation is much different from making use of a lethal weapon like a hidden dagger.

The court considered the evidence of domestic help who testified that the appellant was a short-tempered person and that he used to chase away the boys who jumped the compound wall to pluck the almonds. On one occasion the boys had broken the windshield of appellant’s car. Considering the temperament of the appellant and constant run-ins with the children, the court concluded that the act was committed whilst the appellant was deprived of self-control upon provocation by children.

The authors most humbly submit that the test of a grave and sudden provocation is an objective test for which the temperament of the appellant and past run-ins on such a trivial issue cannot be used in favour of the appellant. In Akhtar v. State, the court stated that the Individual qualities like temperamental instability and defective outlook are not given priorities in order to provide beneficial treatment to the accused. Moreover, the doctrine of sudden and grave provocation contemplates the temporary loss not the permanent absence of self-control. Before the loss of self-control, the accused must be in consonance to all the criterion of reasonable man which means he should not act irrationally.

In the factual matrix of the present case, it cannot be contended that a reasonable army officer would have lost self-control on such a trivial act of a child and would in no stretch of imagination retaliate in the manner the appellant did i.e. by shooting down the kid from point-blank range.

The authors most humbly submit that this decision cannot be treated as an authoritative precedent for deciding case falling under the exception of a grave and sudden provocation. The case has not discussed any precedents to discuss the position of law with regard to the application of the said exception. The settled position of law is quite different, which the court has failed to consider. In our submission, there is no ratio in this judgement and the conclusion reached is erroneous in law.


Aditya and Prashant are currently studying Law from National Law University, Jodhpur

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