024 - Provocation As A Defence in The Indian Penal Code (319-355)

PROVOCATION AS A DEFENCE
in
THE INDIAN PENAL CODE
R. V. KELKAR*
An offence committed in the sudden heat of passion on grave pro-

vocation is morally less blameworthy than one committed in a cool and
reasoned manner. Naturally, provocation has to receive some consi-
deration in any penal system that approves of gradations of punish-
ments. In fact, it has been almost universally recognized as an ex-
tenuating 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 exceptional circum-
stances.2 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.3 However, the Indian courts,
while exercising the discretion in awarding punishment, have in
practice widened the scope of this partial defence. Quite often, they
do consider provocation as a mitigating circumstance even if that pro-
vocation is not of the requisite type and degree specified in the Code. 4
Further, the plea of provocation seems to have been taken into account
even in respect of offences which, according to the Code, do not admit
of any such plea. 5
♦Lecturer, Faculty of Law, University of Delhi.

1. All Commonwealth Countries, most of the Western European Countries, and
many states of the United States of America do consider provocation as a mitigating
circumstance.—Vide Report of the Royal Commission on Capital Punishment, 1949-'53
(cmd. 8932) pp. 453-459.
2. " Anybody who has exceeded the limits of self-defence is nevertheless not to
be punished if the excess is due solely to emotional upset or derangement produced by
the attack"—s. 48, Norwegian Penal Code of May 22,1902, as of March 1,1961. (Vide
—The American Series of Foreign Penal Codes, 3 Norway, p. 29). A similar defence
appears to be available in Denmark and Netherlands—Vide Report of the Royal
Commission, supra, p. 457.
3. Ss. 300, 334, 335, 358.
4. 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.
5. T. Alibi v. Govt, of Mysore, A.I.R, 1952 Mys. 10.
www.ili.ac.in © The Indian Law Institute

320 PROVOCATION AS A DEFENCE IN THE INDIAN PENAL CODE
General Scheme of the Defence—Defective Legislative Technique

T o get a comprehensive picture of t h e defence of provocation,
one will h a v e to refer to a b o u t ten sections 6 in the Code. Broadly,
they deal w i t h two aspects of the defence—(i) T h e n a t u r e a n d quality
of t h e p r o v o c a t i o n required, a n d (ii) its effect on punishment in respect
of p a r t i c u l a r offences. T h e scheme of the sections appears to have
suffered from defective legislative t e c h n i q u e . T h e relevant provisions
d o not possess a d e q u a t e balance a n d symmetry, and lack in consistency
as well.
I t is difficult t o rationalise why only in cases of7 M u r d e r , Grievous
h u r t , H u r t , Assault, a n d Criminal force, provocation has been specifi-
cally provided as a m i t i g a t i n g circumstance, while in case of other
offences, t h e Code makes n o reference to provocation at all. If it is
desirable to consider provocation as a defence in case of h u r t or
assault, it should b e equally so in case of culpable homicide not
a m o u n t i n g to m u r d e r , 8 or in case of wrongful restraint. 9 Some offences
against p r o p e r t y also, like mischief, 10 when committed on grave a n d
s u d d e n provocation, m a y lose m u c h of their sting ; a n d it will, there-
fore, n o t b e fair to ignore t h e provocation, while awarding the punish-
m e n t . It m a y b e suggested t h a t e v e n in respect of such other offences,
the courts, in t h e exercise of the discretion in passing the sentence, m a y
take into account the circumstance of provocation, a n d mitigate the
p u n i s h m e n t suitably. N o d o u b t , as stated earlier, 1 1 courts have consi-
dered provocation as a m i t i g a t i n g circumstance even in cases not ex-
pressly p r o v i d e d for u n d e r the Code. But this only indicates t h a t t h e
legislative omission is not likely to make material difference in actual
p r a c t i c e ; the a r g u m e n t , therefore, does not meet t h e whole case. I t
does not explain w h y the defence was expressly m a d e available in res-
pect of a few offences a n d not in respect of others. E x c e p t probably
in case of M u r d e r , 1 2 t h e r e is hardly any justification for such legisla-
tive discrimination.
6. Ss. 300 ; 325, 326, 335 ; 323, 324, 334 ; 352,355, 358.
7. Ss. 300, Exception 1, 335, 334,358.
8. S. 304.
9. S.339.
10. S.425.
11. See Note 5, supra, T. Alibi v. Govt, of Mysore, A.I.R. 1952 Mys. 10.
12. Murder is a kind of culpable homicide, for which the punishment is always
either death or life imprisonment; no such minimum punishment is fixed for Culpable

R. V. KELKAR 321
The Code makes a distinction between simple hurt and grievous

hurt, and prescribes an enhanced penalty for the latter. 13 Provocation
does not affect this distinction though it mitigates punishment provided
in each case.14 While the Code retains the distinction based on the nature
of injury caused, i.e.y 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. 15 But
if such hurt is caused on provocation, it is immaterial what weapons
or means were used for such hurt. 16 Here again, the punishment pro-
vided for causing hurt on provocation being only a maximum one, the
judge is free to make a variation in punishment on the basis of wea-
pons 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 accus-
ed.17 Therefore, though the Code considers the means to be im-
material, yet in practice, they are relevant while allowing the defence
of provocation.
Section 352 provides punishment for 'assault or criminal force
otherwise than on grave provocation. 5 And, as counterpart of this
s. 358 mitigates the punishment if that offence is committed on grave
provocation. Section 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 disho-
nour the victim of the crime. The Code has not provided a counter-
part to this section so as to cover the offence committed on grave
Homicide not amounting to Murder. The defence of provocation as provided in Ex

ception 1 to s. 300, takes out the homicide from the category of Murder and saves the
accused from the operation of minimum punishment. Here provocation not only
mitigates punishment but also changes the criminal character of the act. Thus the
plea of provocation here stands on a different footing justifying special attention of
the Legislature.
13. Ss. 323 & 325, read with ss. 319 & 320.
14. Ss. 334 & 335 read with ss. 323 & 325.
15. Ss. 324 and 326.
16. Ss. 334 & 335; see also, Chullundee Poranick (1865) 3 W.R. (Cr.) 55. Bhalla
Chula, 1B.H.C.R. 17.
17. For discussion of this point, see pp. 338-342 infra. Attorney-General for Ceylon
v. Kumarsinghege Don Johen Perera (1953) A.G. 200, at. 20b,-cited with approval in
Guriya Bucha v. State of Gujarat, A.I.R. 1962 Guj. 3$ at p. 43.

provocation. Again, the nature of provocation referred to in s. 355

is different from that referred to in ss. 352 and 358. The result is, if
the offence contemplated by s. 355 is committed on such provocation
as is referred to in that section, it can only be punished either under
s. 358 or s. 352, depending upon whether the provocation satisfies all
the conditions laid down in s. 358 or not. Therefore, though it would
be incorrect to suggest that the provocation negatives the intent refer-
red to in s. 355, yet, so far as the punishment is concerned, the effect
of the aggravating circumstance is negatived by such provocation.
The standard of provocation and the prerequisite conditions for
availing the defence of provocation, are not uniform in ail cases where
the defence is explicitly allowed in the Code. In cases of Murder, the
defence is required to prove, inter aliay that the death was caused by the
offender, whilst deprived of the power of self-control by grave and sudden
provocation, 18 whereas in case of remaining offences,19 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 provocation in respect of other offences ; 20
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 condition. 21 In the case of Bhagwan Chhagan **
the Bombay High Court did not dispute the availability of the defence
under s. 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. 23
The defence of provocation contemplated by s. 35534 is much
wider. Not only it does not require the proof of the deprivation of
18. See Exception 1 to s. 300.

19. Ss. 334, 335, 355,358.
20. While discussing about the provisions dealing with bodily hurt voluntarily
caused by grave and sudden provocation, the authors of the Code say, " T h e provi
sions 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.
21. Lai Bakhsh, A.I.R. 1945 Lah. 4 3 ; Sheodin Hari Prasad v. Juwani, A.I.R. 1927
Nag. 47 ; Bhagwan Chhagan, A.I.R. 1915 Bom. 120.
22. A.I.R. 1915 Bom. 120.
23. Bhagwan Chhagan, supra.
24. This section prescribes ptfhishment for "Assault or Criminal force with
intent to dishonour person, otherwise than on grave provocation."

R. V. KELKAR 323
the power of self-control,25 but it also does not necessitate the

proof56 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 (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 s. 355 or on this lacuna.
Further, 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 wording
of the cl. 4 of s. 300 makes room for such a curious and interesting
situation. According to s. 300,'27 culpable homicide is murder if the
act by which death is caused is done, with the intention described in
one of the first three clauses or with the knowledge mentioned in cl. 4.
But in case of cl. 4, it is further necessary that c such act is committed
without any excuse for incurring the risk of causing death or such injury
as aforesaid ' 2S All these four clauses are subject to five exceptions.
Naturally, the words "without any excuse" in cl. 4, must necessarily
import something more than that covered by the five exceptions jointly
25. Such proof is necessary only in case of Murder, see section 300, Excep
tion 1.
26. In case of all other offences including Murder, such proof is essential. See
provisos to Exception 1 to s. 300, ss. 334-335 Explanation, ss. 352 and 358 Expla
nation.
27. Section 300 : " Except in the cases hereinafter excepted, culpable homicide
is murder, if the act by which the death is caused is done with the intention of caus
ing death, or 2ndly.—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 harm is
caused, or 3rdly.—If it is done with the intention of causing bodily injury to any per
son and the bodily injury intended to be inflicted is sufficient in the ordinary course of
nature to cause death, or—4thly.—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 incur
ring the risk of causing death or such injury as aforesaid."—(These four clauses are
followed by fivs exceptions, which are not reproduced here.)
28. Ibid, cl. 4 of s. 300.

and severally. If they were to mean only something already covered

by the five exceptions, there was no point in incorporating these
words. The Legislature is never presumed to use superfluous expres-
sions. The observations of the court in the case of Barkatulla^ lend
full support to this view. There it was observed, 30 "As this 4th
clause is expressed like the three preceding clauses to be subject to the
five exceptions which are legal excuses for murder (as contra-distin-
guished from culpable homicide), it is evident that the words, without
any excuse' in cl. (4) do not mean merely t in the absence of the
circumstances' described in the exceptions. A jury or court as a judge
of fact is left at liberty to affirm upon proof of circumstances other than,
or falling short of> an exception, not that these circumstances form an
excuse for murder, but that in view of them the jury or court is unable
to affirm that the particular act of homicide was committed without
any excuse and is therefore unable to pronounce the act to be culpable
homicide amounting to murder as defined in cl. (4) of s. 300."
(Emphasis Added).
Exception 1 to s. 300, 31 incorporates the defence of provocation
to a charge of murder. But the interpretation of cl. 4 in s. 300 as
referred to in the preceding paragraph, would suggest that provocation
' other than or falling short' of the one specified in Exception 1 to
s. 300, might be considered as an c excuse ' within the meaning of cl. 4
and that such provocation would equally prevent culpable homicide
from amounting to murder. BarkatulWs case aptly illustrates the
point. There the court, after adverting to the facts established,
expounded the law in unambiguous terms. The court observed, 32
"...The Judge [Sessions Judge] finds that the accused caused the death
29. (1887) 22 P.R. (Gr.) No. 32, p. 62 {Barkatulla).

30. Barkatulla, supra, at p. 66.
31. Exception 1 to s. 300; " 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 per
son by mistake or accident. The above exception is subject to the following provisos :
First.—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. 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, it a question of fact."

R. V. KELKAR 325
of his wife by fracturing her skull by a single blow, probably from an

iron-bound club, but possibly from a stick. He finds sufficiently
clearly that the accused did not commit the act with an intention that
would constitute it murder. He finds that the accused must have
known that his act was so imminently dangerous that it must in all
probability cause death, and he finds that he acted recklessly, in anger,
but under such grave provocation, as mitigates the offence^ though the provocation
was not sudden as well as grave The Judge then considered the
question of murder, and after absolving the accused of a murderous
intent found that he had the knowledge described in the 4th clause of
s. 300, but acted under the influence of such grave provocation as
materially mitigated the offence. The Judge came finally to the
conclusion that the act was, murder, but in view of the mitigating
circumstances a capital sentence was not called for. Accepting
for the present all the findings of fact arrived at by the Judge as
distinct from his conclusion as to the nature of the offence committed,
I think it is clear that he ought to have convicted the accused of culp-
able homicide not amounting to murder and to have acquitted him
of murder/' 3 2 (Emphasis supplied).
The operation of the defence of provocation lacks uniformity and
consistency in another respect. 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 s. 300), hurt (ss. 323,
324), grievous hurt (ss. 325, 326), the onus is on the accused to prove
provocation, 33 while it is for the prosecution 34 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, I860. 35 The subsequent passage of the Indian Evidence
Act in 1872 necessitated reconsideration and suitable modification of
the abovesaid ss. 352 and 355, but it has not been done so far.
32. Barkatulla, supra, at pp. 68-69.

33. Section 105, Evidence Act, 1872 See illustrations (b) and <c) to that section.
34. Section 103, Evidence Act, 1872. See also, Sheodin Hari Prasad v. Juwani,
A.I.R. 1927 Nag. 47.
35. Section 103 of the 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 exis
tence unless it is provided by any law that the proof of that fact shall lie on any parti
cular person." Section 105 of the said Evidence ^&t: "When a person is accused of any

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) Provo-
cation, 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 Punish-
ments. 36 (ii) Alternatively, the 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.
II
Importance of the Defence of Provocation
in case of Murder
The First Exception 1 to the definition of murder, as given in
s. 300, provides for the defence of provocation and reduces murder to
culpable homicide not amounting to murder.
The Indian Penal Code makes a clear distinction between
culpable homicide amounting to murder and one which does not. The
punishment for murder is either death or imprisonment for life; 2 and
if murder is committed by a person undergoing imprisonment for life,
the punishment shall be death only. 3 On the other hand, the punish-
ment for culpable homicide not amounting to murder can never be
death, but only imprisonment for life or imprisonment which may
extend to ten years.4 Therefore, the success or failure of the defence
of provocation to a charge of murder makes a world of difference to
the accused person. If the defence fails, the court has no choice but
to pass the sentence of either imprisonment for life or death ; if it
succeeds, the offence becomes one of culpable homicide not amounting
offence, the burden of proving the existence of circumstances bringing the case with
in any of the General Exceptions in the Indian Penal Code (XLVof 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 circumstance.'*
36. Chapter III, " Of Punishments.'*
1. See f.n. 31 on p. 324 where the exception is reproduced.
2. S. 302.
3. S. 303.
4. S. 304.

R. V. KELKAR 327
to murder and the court gets such a wide discretion under s. 304 in
passing the sentence that it may in appropriate cases take a very
lenient view of the homicide, and the punishment may be even as low
as three months imprisonment. 5
In case of other offences where the defence of provocation has
been specifically provided by the Code, 6 the success or failure of the
plea of provocation would not lead to such enormously divergent
results. For, the Code confers wide discretion on judges by providing
only the maximum limits to the punishments for such offences,7 and if
the offences are committed on provocation of the prescribed type,
these maximum limits are lowered down by separate provisions in the
Code.8 The result is, if the requirements of the defence of provocation
are satisfied, the discretion of the judge in passing the sentence is
positively limited in favour of the accused ; but if the defence fails to
attain the prescribed standard, then, unlike in case of murder, the
discretion of the judge in the matter of punishment is not negatively
reduced to the detriment of the accused. The judge is still left with
undiminished discretion and he may and does9 take into account the
fact of provocation (even if it is not of the prescribed type) as a
mitigating circumstance while awarding the punishment.
Under these circumstances, 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.
Provocation, in case of murder as distinct from other offences, is
much more than an extenuating circumstance. It takes away homicide
out of the category of murder and thereby changes the nature of the
offence. Therefore, in any matter involving an inquiry as to the
nature of a homicide, the circumstance of provocation will be of consi-
derable importance. For instance, section 25 10 of the Hindu Succession
5. See Hussain, A.I.R. 1939 Lah. 471 ; see also Govindappa, [1931] M.W.N. 553 ;
cited in Ratanlal, 20th ed. p. 796, f.n. 3 . ; where the punishment imposed was one
year's rigorous imprisonment; see Said Ali, (1890) P.R. No. 8, where there is discus
sion about the proper quantum of punishment in such cases.
6. Ss. 334, 335, 358.
7. Ss. 323, 324, 325, 326, 352 and 355.
8. Supra, Ss. 334, 335, 358.
9. Seef.n. 4 on p. 319.
10. Section 25: ' A person who commits rmarder or abets the commission of
murder shall be disqualified from inheriting the property of the person murdered, or

Act, 1956, disqualifies a person guilty of murder from inheriting the

property of the person murdered. It is possible to interpret the
section—particularly when read with section 28 11 of the said Act—as
disqualifying a person guilty of murder only, and not one guilty of
any other type of homicide. 12 So, if provocation be proved in such a
case, so as to prevent the culpable homicide from amounting to murder
the disqualifications mentioned in section 25 of the Hindu Succession
Act, 1956, will not attach to the person guilty of the homicide.
For these reasons, 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 1 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.
Present unsatisfactory position of law

Considering the importance of the defence in case of murder, one
would reasonably expect a high 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 portion of the law is yet, to
borrow the expression from Russell, in a state of 'bewildering
uncertainty'. One main reason for this unsatisfactory position of law
any other property in furtherance of the succession to which he or she committed or

abetted the commission of the murder.'
11. Section 28 : ' No person shall be disqualified from succeeding to any pro-
perty on the ground of any disease, defect or deformity or save as aforesaid in this Act,
on any other ground whatsoever,* (Emphasis added).
12. Such interpretation has been suggested by some persons though it is not
supported by any judicial authority so far: " If the heir is guilty of the offence of
culpable homicide not amounting to murder (s. 304, Indian Penal Code) then he or
she shall be excluded from inheritance on the principles of equity, justice and good
conscience, and on the ground of public policy (Kencheva v. Girmalappa, 51 I.A. 368:
48 Bom. 569). For statutes regulating heirship or descent, or giving force to wills
should be read as not intended to affect paramount questions of public policy or
depart from well settled principles of jurisprudence (51 I.A, 368). But in view of
the express provision now contained in this section a person guilty of an offence not
amounting to murder IJ not disqualified under this Act {s. 28) "—(Emphasis added). See
rUmnrltiari W * W t / Xurrfi cc*'/jn Art 1QZR Or,A *A MQ*i7\ n 9Q1

R. V. KELKAR 329
would be found in the tendency of the Indian judges to follow English

precedents rather indiscriminately. When the provisions dealing with
provocation were drafted by the framers of the Penal Code, the attempt
was to improve upon the English law.13 Consequently, the Indian
law, in its early stages, was simpler and more precise than the then
existing English law. However, the initial advantage was not fully
utilised by the courts while expounding the law in subsequent years.
The Courts following English precedents (though not legally binding
on our courts) sometimes overlooked the actual provisions in the
Code,14 and sometimes neglected Indian precedents. They even
preferred English law terminology to the one adopted by the Indian
Penal Code. 15
Another major contributory factor to the present unhappy state
of law is the acceptance of the objective standard—the standard of
reasonable man—in assessing the seriousness of the provocation when
pleaded as a defence to a charge of murder. Lastly, for several reasons,
13. For instance, till the passing of the Homicide Act of 1957, words alone could
not constitute sufficient provocation under English law. T h e framers of the Code
consciously departed from English law on this point. They observe, " H i s Lordship
in Council will remark one important distinction between the law as we have framed
it, and some other systems. Neither the English law, nor the French Code extends
any indulgence to homicide which is the effect of anger excited by words alone ... It
is an indisputable fact that gross insults by word or gesture have as great a tendency
to move many persons to violent passion, as dangerous or painful bodily injuries. Nor
does it appear to us that passion excited by insult is entitled to less indulgence than
passion excited by pain."—Note M, p . 59. English law took nearly hundred years
more to adopt this view point. Now, it has been accepted by s. 3 of the Homicide
Act, 1957.
14 E.g., (i) Despite the clear words of the Explanation in Exception 1 to s. 300,
the question of provocation was held by the Allahabad High Court as one of law.
Vide, (1886; 8 All. 635, Lochan, cited in Ratanla), p. 751 f.n. 18 ; however the Calcutta
High Court had decided differently in Huri Giree's case, vide, (1868) 10 W.R. (Cr.)
26. Recently, the point whether provocation is a question of fact or law, was raised
before the Supreme Court in Nanavati's case (A.I.B. 1962 S.C. 605). But the Court
did not consider necessary to express final opinion thereon. The result is, in spite of
the clear words of the section the law is not free from doubt.
(ii) Holme's case [1946] A.G. 588, was followed in Vila Mahapatra, A.I.R; 1950
Orissa 261, without adverting to the view point of the Code that words may constitute
sufficient provocation. It was held that words are never adequate provocation.
15. See Dinabandhu, A.I.R. 1930 Cal. 199, where the English law terminology—
Murder-Manslaughter was used instead of the one adopted by the Code, namely,
Murder-Culpable homicide not amounting to murder. The language of Exception 1
was never adverted to at all. The entire decision was based on English precedents.

certain aspects of the extent defence of provocation still remain

ambiguous, and are awaiting authoritative clarifications.
Objective Standard of Provocation accepted

T h e Code has doubtless adopted the objective standard to measure
the adequacy of provocation for the purposes of the defence. The
wording of Exception 1 to section 300—"...if the offender whilst
deprived of the power of self-control by grave and sudden provocation,
causes the death..."—clearly indicates that it is not every provocation
but one which is grave and sudden according to the ordinary meaning
of these words, that would mitigate the offence. The 'gravity5 of the
provocation is to be measured by the standard of reasonable man and
not that of the accused. If it were otherwise, the words 'grave and
sudden' would become superfluous. In fact, the Law Commissioners
in their First Report have explicilty referred to this objective test.
They Say,16 "The discretion... is purposely left to the court to judge
whether the provocation be such as would be likely to move a person
of ordinary temper to violent passion, not any person it is to be
understood but a person of the same habits, manners and feelings..."
Further, there are numerous judicial authorities 17 recognizing the
objective test of provocation, that decisively outweigh the opinions 18
and sporadic judicial dicta 19 to the contrary. And above all, the
Supreme Court, in a recent decision, has dispelled all doubts, if any,
in this regard, by expounding the law on this point in clear and
unambiguous terms. The court observed, 20 ...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
16. First Report, s. 271, cited in Ratanlal, 20th ed. at p. 747.

17., Dinabandho Oarya, A.I.R. 1930 Cal. 199 ; Vila Mahapaira, A.I.R. 1950 Orissa
261; Dhanno Khan, A.I R. 1957 All. 317; Des Raj, 41 P.L.R. 758 Dhulat A.I.R. 1956
M.B. 94.
18. See S.K.L. Ratan, Culpable Homicide, p. 74—While commenting on Queen v.
Huri Giree, 1 B.L.R.A. Cr. 11, he observes ; " ... However, if by 'adequate cause* it
is intended to import into the exception a test, which is not there, that there must
exist such an amount of provocation as will upset not merely a hasty and hot tempered
person, but one of ordinary sense and calmness, it is submitted, the test is not
warranted by the language of the exception.*'
19. See, Bhuranga Vraon, A.I.R. 1935 Pat, 506 ; Krishnachandra, A.I.R. 1929 Pat.
201.
20. Nanavati, K. M. v. State of Maharashtra, A.I.R. 1962 S.C. 605, at p. 630.

R. V. KELKAR 331
the accused was placed, would be so provoked as to lose his self-

control..."
Drawbacks and limitations of the objective test

In these days, when so much is being said about the sanctity of
mens rea doctrine and individualization of punishment, all objective
criteria of criminality are bound to smack of injustice to the indivi-
dual accused,—particularly when such criteria are adopted, not for
determining the guilt or innocence of the accused, but for making
variations in punishment of the guilty. Because, whatever might be
said in support of the objective test on grounds of public safety, it
cannot possibly apply with equal force where public safety is not
substantially jeopardized by the mitigation of the sentence, as in case
of this partial defence of provocation. Suppose a hypersensitive
abnormal person is provoked by a provocative act which is not 'grave 5
according to normal objective standard. Whilst deprived of the power
of self control by such provocation, he kills the person giving the
provocation. If objective test is applied, his offence is murder and he
is liable to be punished either with death, but in all probability with
imprisonment for life (and sometimes his case is even recommended to
the State Government for commutation of the sentence.21) If subjective
standard of provocation is applied, the offender would be guilty of
culpable homicide not amounting to murder, and the judge may pass
any sentence up to imprisonment for life. In both the cases, the accused
is not released so as to pose a threat to public safety.
The problems involved in adopting objective standard in assessing
criminal liability are obviously not confined to this field of criminal
law;22 and therefore, the controversial issue of discarding objective
standard in favour of subjective one, should receive a comprehensive
treatment by an overall study of all its facets in a much broader
perspective, which is quite beyond the narrow compass of this article.
Accepting, therefore, the standard of reasonable man as fait
accompli, the attempt here is to study the working of this test with a
view to improving upon it within its natural limitations. Much of
21. See Gosain, 57 LC. 175 ; Ramaswamy Konar, A.I.R. 1954 Mad. 538.
22. For instance, the commencement of the right of private defence depends
upon * the reasonable apprehension of danger ' and not upon the apprehension of
danger by a person who is abnormally timid aritt suspicious. See ss 102, 105, Indian
Penal Code.

the confusion and the consequent dissatisfaction, in the operation of

this objective test, is due to over-sophistication of the image of
'reasonable man'. The courts, instead of showing adequate awareness
against this danger, have unwittingly assisted the 'logical' expansionism
of the 'reasonable man' and thereby allowed the objective test to
outgrow to such an extent as practically to defeat its own purpose,—
reminding one of the famous fable of the Arab and his camel.
Emergence of 'Reasonable Man'—What is he ?

It is not out of place to note that though the objective test of
'grave and sudden 3 provocation was entrenched in the Exception
itself, and substantially adhered to by our courts, the "reasonable
man's test" in this connection, is only of recent origin. Since the Indian
Penal Code came into force in 1862, for more than fifty or sixty years
the judges used to consider the gravity of the provocation according
to "common sense", "one's experience of the world"'33, or whether
the provocation had an ' adequate cause'' 24 or not and so on; but they
never used the test of 'reasonable man'. Obviously, the expression
was borrowed from English decisions.25 The Indian decisions given
before the advent of 'reasonable man' can hardly be challenged as
incorrect or unsatisfactory. Nor*any special difficulty was experienced
in judging whether the provocation was 'grave and sudden'. Practi-
cally nothing would have been lost, if the phraseology of 'reasonable
man' had been avoided by the courts. But by importing the
phraseology from English courts, the seeds of confusion and trouble
were unwittingly sown in our law. The 'reasonable man' has
certainly ushered in far more problems than was ever imagined.
According to the test of reasonable man, only such provocation

as is capable of depriving a reasonable man of his self-control is
considered to be ' grave \ The provocation is to be judged with
reference to its probable impact on the mind of a ' reasonable man '.
Then, the question is, who is this man ? What type of mind has he ?
Obviously, he is not a person who is ideally reasonable. 26 If he were to
23. See Queen Empress v. Chunni (1896) 18 All. 497.

24. Hari Giri (1868) 10 W.R. (Gr.) 26.
25. See Soharab, A.I.R. 1924 Lah. 450 ; Dinabandhu, A.I.R. 1930 C. 199, where
reference was made to Welsh, & Lesbhti—English cases.
26. See Mahmood (1961) A.L J . 209, at p. 213, which supports this view.

R. V. KELKAR 333
be so, he would not lose his self-control despite any serious provoca-
tion. Then what is the degree of reasonableness with which he is to
be invested ? By qualifying the reasonable man with rhetorical
adjectives 27 like ' normal', 'average ', ' common ' etc., the degree of
reasonableness hardly becomes more comprehensible. This type of
description of reasonable man only moves in a circle.
Really speaking, none has so far attempted to draw a complete
sketch of the reasonable man, depicting his characteristics, both
physical and mental. 28 The Supreme Court adverted to the problem
in these terms. 29 " I s there any standard of reasonable man for the
application of the doctrine of ' grave and sudden * provocation ? No
abstract standard of reasonableness can be laid down." Once this
truth is firmly understood, no time and energy need be spent in search
of any concrete categories of provocation that can be labelled as
* grave ' without any regard for time, place, etc. The Supreme Court
has rightly pointed out that 29 " What a reasonable man will do in a
certain circumstances depends upon the customs, manners, way of
life, traditional values etc.; in short the cultural social, and emotional
background of the society to which the accused belongs. In our vast
country there are social groups ranging from the lowest to the highest
state of civilization. // is neither possible nor desirable to lay down any
standard with precision ; it is for the Court to decide in each case, having regard
to the relevant circumstances." (Emphasis added)
The true import of the expression, c reasonable man ', so far as it
relates to the objective test of provocation, appears to be confined only
to a ' normal' person with all his weaknesses and defects.30 This
27. In the case of Guriya Bucha, A.I.R. 1962 Guj. 39 at p. 41, Justice V. B. Raju
observed, "The standard for the loss of self-control is of course that of an average
reasonable normal person ". It is difficult to understand what meaning was intended
to be conveyed by the use of these adjectives.
28. " N o judicial definition of him is given to the jury in a criminal case or in
the text-books of criminal law."—Russell on Crime, 11th ed., I V o l , p. 595. " N o
court has ever given, nor do we think ever can give, a definition of what constitutes a
reasonable or an average man."—McCarthy [1954] 2 Q.B. 105, at p. 112. After refer
ring to R. v. Higgins, [1947] 2 All. E.R. 619, G. W. Keeton says, " Indeed, the only
point which clearly emerges from this discussion is that the courts must transfer to the
jury the task of deciding what is reasonable or not, in the hope that the jury's
' hunch ' will achieve a rough sort of justice which the court declines to establish by
any more expert process." The Elementary Principles of Jurisprudence, p. 217.
29. Nanavati, supra, at pp. 629-630.
30. In some countries, the expression in vogue is ( n o r m a l ' or * average *
person, or " ordinary" person, see Report of the Royal Commission on Capital

view finds support in the observations of Justice Dhavan in the case

of Mahmood v. State 31.
The expression ' reasonable man ' is misleading
The expression * reasonable man ' has misled the judges at times,
probably because of the word ' reasonable ' and made them think that
the reasonable man would (or should) react to the provocation only in
the manner consistent with the commands of law and the dictates of
social morality. Two other extraneous and unwarranted considera-
tions might have contributed to such approach or thinking. It is
said, 32 "...the court has to determine what amounts in any particular
case to grave and sudden provocation, and...the circumstances have to
be viewed carefully so as not to extend provocation beyond the limits which the
safety of the public requires., ."(emphasis added). The other contributory
factor is the supposition that if the provocation (however serious
it may be) is given by doing any proper or just act, any concession in
punishment for the crime committed on such provocation, would
amount to indirectly reprobating the just act or its doer. Or in other
words the punishment in such a case would not adequately satisfy the
' legitimate' urge for retaliation on the part of the victim or his
relatives ; and so, such a concession should not be made. Some such
consideration, directly or indirectly, and in varying proportions, must
have formed the basis for a restrictive proposition that the provocative
act contemplated in the defence of provocation, must be " either
illegal or one which, though legal must be improper." 33 So, it was
held 34 that where a person merely states a fact and gives a well-merited
rebuke for running away with his blind brother's wife, the accused is
not entitled to avail himself of such rebuke as grave and sudden provo-
cation which would reduce the offence to culpable homicide not
amounting to murder.
Relationship of the accused in cases involving intercourse as an act of

provocation
In cases where the provocative act is the sexual intercourse, it was
felt that, if the accused is related to one of the parties to the
Punishment (Cmd. 8932), 1953, pp. 453-454, where reference has been made to
criminal codes of Canada, New Zealand, Tasmania etc.
31. Mahmmodv. State, (1961) A.LJ. 209, at p. 213.
32. Per Roberts, CJ., in Nga Mya Maung, A.I.R. 1936 Rang. 472, at p. 472 ; see
also Vila Mahapatra, supra; Lai Singh, (1921) 22 Cr. L.J. 674.
33. Gour, The Penal Law of IndiaJtYi ed. p. 1415.
34. Munian—[1937] M.W.N. 637, cited in Gour, supra, at p. 1411.

R. V. KELKAR 335
provocative act as husband, (or as father, brother or son of the woman

who is under his protection), then alone he should get the benefit of
the exception. 35 The basis for this view seems to be that an act to
amount to provocation must be illegal or improper. Following the
English case of Rex v. Palmer*** Justice Mitter of the Calcutta High
Court observed in Emperor v. Dinabandhu^1 that the rule has no applic-
ation where the relationship between the parties is not that of husband
and wife. A similar view was also taken by the Patna High Court in
Murgi Munda v. Emperor^ relying on the Palmer case.39 The Court obser-
ved that the provocation which is mentioned in Exception 1 to s. 300,
Penal Code, is something recognized as provocation in law and not
merely something which arouses the uncontrollable anger of a particular
individual. It is interesting to note that the Court has obviously
departed from the original rule forjudging 'gravity' of the provocation
according to the test of reasonable man, and made it dependant on
the question whether it is recognized as provocation in law or not. The
departure from the original rule may be due to the oversophistication
of the rule of reasonable man, may be because of the considerations
of supposed public safety, or may be due to too much reliance on the
English decision in the Palmer case. Whatever may be the reason, the
question, what amounts to provocation, is not considered as one of
fact but treated as one of law. This is in direct conflict with the
Explanation 40 to Exception 1 to s. 300.
The cases referred to above are only illustrative of how the
proposition that the provocative act must be either illegal or improper,
35. See the observations of the Madras High Court In re Jamaludin, [1955] 1
M.L J. 471 at p. 472. " Though there are rulings to the effect that when a wife or
mother or married sister, living under the protection of the husband or son or brother,
is caught in the act of having sexual intercourse with a stranger, the killing of that
stranger before there is time to get over the sudden anger would be only an offence
under s. 304, Indian Penal Code, there is no ruling that a person, like the appellant,
not being the guardian or custodian of a woman like the deceased, a mere first cousin,
would have a similar right to kill her and claim to be convicted only under s. 304,
Indian Penal Code. We consider that the ruling referred to above should not be
extended to first cousins, second cousins and others, especially when they are also not
in the custody or protection of the individual killing them."
36. [1913] 2 K B . 29.
37. A.I.R. 1930 Cal. 199, at p . 203.
38. A.I.R. 1939 Patna 443.
39. Supra, note 36.
40. For, the explanation says, " WhetherUhe provocation was grave and sudden
enough to prevent the offence from amounting to murder, is a question of fact."

is a real threat to and a serious encroachment upon the flexible test of

reasonable man. As a matter of fact, the abovesaid proposition with
all its concomitants, does not get any support from the wording of
the Exception. The position, on the other hand, is just the reverse.
The legislature seems to have taken adequate reasonable precautions
for the safety of the public against the risks involved in the unbridled
operation of the defence of provocation. It provides by the last two
provisos to the Exception 41 that certain legal acts (i.e. those done in
obedience to the law, or by a public servant in the lawful exercise of
the powers of such public servant, or those done in the lawful exercise
of the right of private defence) would never be considered as
giving provocation. This provision is, not by way of explanation,
but by way of provisos to the main Exception. Therefore, it implies
that the legislature has no objection in allowing other legal acts to
constitute provocation, provided they satisfy the tests laid down in
the main body of the Exception. Further, if the legislature had in-
tended to confine the defence only in respect of provocation by illegal
acts, it could have easily done so. A comparison of the wording of
s. 153 with that of Exception 1 to s. 300, will further elucidate
the point. While in s. 153,42 the provocation referred to therein
must have been given " by doing anything which is illegal," no such
limitation on the nature of provocation is found in Exception 1.
In estimating the gravity of provocation, what is of prime import-
ance, is the likely impact of the provocative act on the mind of a
reasonable person. The legality of the act may not necessarily
diminish this impact. The Madras High Court, at least in one
case, 43 has supported this view. In that case, the accused, (Kota)
Potharaju finding his mistress, Mahalakshmi, in the arms of a former
lover of hers, stabbed and killed her. On these facts, Madras High
Court observed, " We find it impossible to agree that the fact, that
Mahalakshmi was appellant's mistress and not his wife makes any
real difference. One cannot apply considerations of social morality
to a purely phychological problem. The question is not whether the
41. For the wording of the provisos see f.n. 31, infra p. 324.
42. Section 153 : Whoever malignantly, or wantonly, by doing anything which
is illegal, gives provocation to any person intending or knowing it to be likely that
such provocation will cause the offence of rioting to be committed in consequence of
such provocation, be punished with imprisonment."
43. (Kota) Potharaju, A.I.R. 1932 Mad. 25. See also Hiromal, A.I.R. 1948
Sind. 63.

R. V. KELKAR 337
appellant ought to have exercised, but whether he lost, control over

himself." The Patna High Court, in the case of Murgi Munda referred
to above, disagreed with the above view of the Madras High Court,
and also considered the observations as merely obiter. No doubt, the
observations of the Court were obiter in the sense that the court had
declined to interfere with the conviction of murder on the ground
that some other conditions of Exception 1 to s. 300 were not satisfied.
Whatever it may be, the force of logic in the observations of the
Madras High Court cannot be ignored. Even Patna High Court
appears to have been somewhat influenced, w7hen it showed its readi-
ness to soften the rigid view taken in cases like Dinabandhu and Palmer,
by saying that 4 4 " It is even possible that the provocation might be
held to be grave in the case of a man who finds in the arms of another
lover a mistress whom he maintains and from whom therefore he might
reasonably expect faithfulness..." Still the emphasis is not on the probable
reaction of a normal person but on the wrongfulness of the provocative act dis-
covered^ by overrefining the norms of upright conduct. It might be asked, if a
person might reasonably expect faithfulness from a mistress whom he
maintains, how it becomes unreasonable, as was suggested in the Palmer
case for a person to expect faithfulness from a girl betrothed to him ?
It is to be hoped that the Supreme Court will some day set right
this tortuous deviation of the objective test and authoritatively declare
that in order to get the benefit of Exception 1 to s. 300, it is not neces-
sary that the provocative act must necessarily be either illegal or
improper.
Words alone can amount to provocation
The Supreme Court has recently stopped a wrong done to the
'reasonable man' in another direction, which will be presently con-
sidered. There is nothing in the wording of Exception 1 to s. 300, to
suggest, that words alone would never amount to grave provocation.
But the contrary had been held to be the law in some cases.46
In Vila Mahapatra, Justice Panigrahi observed, 46 " But mere
verbal provocation, even if it be threats or gestures or by the use of
abusive and insulting language cannot induce a reasonable person to
commit an act of violence. The case of provocation caused by
44. Murgi Munda, supra, at p. 447.

45. Abdhulla, A.I.R. 1932 Lah. 369; Mohammad Ali, A.I.R. 1946 Lah. 278; Vila
Mahapatra, A.I.R. 1950 Orissa 261.
46. A.I.R. 1950 Orissa 261, at p. 263.

physical attack is, on the other hand, different.. .But hard words never break
bones and the law expects a reasonable person to endure abuse without resorting to
fatal violence." (Emphasis added). In the face of abundant authority
to the contrary, 47 this bias against verbal provocation can hardly
be attributed to anything but the inexplicable desire to bring Indian
law in line with English law. 48 Fortunately, however, this artificial
restriction upon the normal reaction of reasonable man has been
finally removed by the authoritative declaration of the Supreme Court
in Nanavati v. State of Maharashtra. In that case, Justice Subba Rao
observed 49 " In India, words and gestures may also, under certain cir-
cumstances cause grave and sudden provocation to an accused so as to
bring his act within the first Exception to s. 300, Indian Penal
Code."
Relation between the mode of resentment and the provocation

A new restriction on the test of reasonable man has emerged out
of some recent decisions. Justice Panigrahi of the Orissa High Court
observed in the case of Ulla Mahapatra,50 "Moreover, the mode of
resentment must bear some proper and reasonable relation to the provocation
given. Words may be met by words and fists by fists. But the law will
certainly not give any protection to a person who whips out a revolver
and shoots because he is abused, even if it be in the foulest language."
This was followed by another later case of Laikhan Pradhan.51 In this
case, on the facts proved by evidence, the lower court had held that
the case was covered by Exception 1 to s. 300, and convicted the
accused of culpable homicide not amounting to murder. On appeal
filed by the State contending that the conviction ought to have been
one for murder, their Lordships of the Orissa High Court, without
differing from the lower courts, on facts, came to a different conclusion
and found that the case could not be brought within the language of
Exception 1 to s. 300, and that the accused persons were guilty of
murder. The main reason for the alteration of the conviction was
47. Nga Mya Maung, A.I.R. 1936 Rang. 472; Sarju Din, A.I.R. 1934 Lah. 600;
Nokul, 7 W.R. (Cr.) 27. I Report, s. 271. (Report of the Law Commissioners) cited in
Ratanlal, 20th ed. at p. 747.
48. It may be noted that in England, because of s. 3 of the Homicide Act, 1957,
words alone may now amount to provocation.
49. A.I.R. 1962 S.C. 605 at p. 630.
50. A.I.R. 1950 Orissa 261, at pt 264.
51. A.I.R. 1956 Orissa 108.

R. V. KELKAR 339
that, the force used by the accused was not proportionate to the pro-
vocation given by the deceased. Justice Mohapatra extensively
quoted the observations of Lord Goddard, C. J., in R. v. Duffy?1* and
also referred to the decision in the case of Mancini v. D. P. P., 5 1 b His
Lordship stated the law on the defence of provocation in these
words, 5 1 0 ../'Moreover, it is settled law now that the mode of resent-
ment bears some proper and reasonable relationship to the sort of
provocation that has been given." So also was the view taken by the
Allahabad High Court in Hafizullah v. State™. In this case, Roy, J.,
while expounding the law on the point, bodily copied the words of
Vicount Simon, L.C., from the judgment in Mancini v. D. P. P., 5 3 but
without making any reference or mention whatsoever to Mancini or to
any other English decision. It was said " In applying the test it is of
particular importance to consider whether a sufficient interval has
elapsed since the provocation to allow a reasonable man time to cool,
and to take into account the instrument with which the homicide was
effected, for to retort, in the heat of passion induced by provocation,
by a single blow, is a very different thing from making use of a deadly
instrument like a sharp and large knife. In short, the mode of resent-
ment must bear a reasonable relationship to the provocation if the
offence is to be reduced to culpable homicide not amounting to murder"
(The only changes made in the words of Vicount Simon L.C. were—
(i) instead of 'concealed dagger' in Mancini^ the words used here are
sharp and large knife ; (ii) and instead of 'manslaughter 5 in Mancini
the words here are 'culpable homicide not amounting to murder'.)
It is worthwhile to note that these decisions, could not refer to any
Indian decision given in the past, in support of the viewpoint about
proportionate retaliation to the provocation.
This restriction on the test of reasonable man, and the manner in
which it has come into existence, are very unfortunate. Such a limi-
tation was unknown in this country before 1942. In that year, the
foundation for it, was for the first time laid down in England by the
observations of Viscount Simon, L . C , in Mancini v. D. P. P. 5 4 The
51a. [1949] 1 All E.R. 932.

51b. [1942] A.C. 1.
51c. A.I.R. 1956 Orissa 108, at p. 110.
52. A.I.R. 1957 All. 377 ; See Also Public Prosecutor, A.P. v. Kundarapu Dhanam
[1961] M.L.J. (Gr.) 580.
53. [1942] A.C. 1.
54. Ibid [1942] A.C. 1.

340 P R O V O C A T I O N AS A D E F E N C E IN T H E INDIAN P E N A L CODE
observations were repeated in subsequent cases and thereby apparent-

ly acquired the force of a rule of law. 55 The emergence of the rule
has been criticized in scathing terms. 56 It is asked—How could it
apply to the cases of provocation by adultery ? What form the mode
of resentment must take if the provocation is through words alone ?57
It is rightly pointed out how the rule will indirectly eat away practi-
cally all the utility of the defence of provocation and thereby destroy
it. For, if the accused is intentionally causing the death of the person
giving provocation, he will get the benefit of the Exception, only
if the provocation were a murderous assault, according to the new
rule. But then, the accused can, in such cases, take the plea of self-
defence and obtain a clean acquittal. 58 And it would be foolish to
prefer the partial excuse of provocation to the complete justification
of self-defence. If the provocative act is short of murderous attack,
then, according to the rule, the retaliatory act must be something not
intended or known to be likely to cause the death of the person giving
provocation. In such circumstances, if death results, death being
only involuntary, the right of self-defence is available, provided the
retaliatory act was proportionate to the provocative act; 58 and in case
the force used by the accused is disproportionate, his case would be
covered by Exception 2 to s. 300,59 in which case again the defence
of provocation becomes unnecessary. In short, the new restrictive
rule will reduce the defence of provocation to such an extent that it
can be invoked only under circumstances which are normally adequate
for the exercise of the right of private defence, or which are sufficient
to raise the defence under Exception 2 to s. 300. But in such a situa-
tion, it becomes either unwise (or indiscreet), or superfluous, unless
55. R. Difffi>, [1949] 1 All E.R. 932; R. v. McCarthy, [1954] 2 Q.B. 105 See
Russell, 7th ed. at p. 611.
56. See Russell, supra, at pp. 610-613.
57. Probably, Panigrahi, J., has given answer in Vila Mahapatra, supra, where he
says, "—Moreover the mode of resentment must bear some proper and reasonable rela
tion to the provocation given. Words may be met by words and fists by fists, but the
law will certainly not give any protection to a person who whips out a revolver and
shoots because he is abused, even if it be in the foulest language." at p. 263.
58. See ss. 99-100 I.P.C.
59. Exception 2 to s. 300 : Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person or property, ex
ceeds the power given to him by law and causes the death of the person against whom
he is exercising such right of defence without premeditation, and without any inten
tion of doing more harm than is necessary for the purpose of such defence.

R. V. KELKAR 341
there are exceptional circumstances which do not permit the exercise

of the right of private defence. For instance, if there is time to have
recourse to the protection of public authorities; or if the provocative
act is legal and so the right of private defence is not available. Theo-
retically such exceptional cases are not unimaginable, but they would
be extremely rare. And the legislature could not have thought it
worthwhile to enact a separate defence of provocation just to meet
such extremely rare cases.
If these are the probable consequences of the adoption of the
rule of 'reasonable retaliation' it is beyond anybody's guess why our
courts were so much enamoured by the rule as to copy it bodily from
English decisions. The observations regarding proportionate retalia-
tion found in English decisions ought to have been taken "not as in-
tended to declare an equality of force or of weapon to be essential,
but as indicating a point of evidence... 5 ' 60 But instead, the Judges
have tried to deduce such a principle from the wording of Exception
In Gurya Bucha v. State of Gujrat,61 V. B. RAJU, J., observes : "Theprin-
ciple which can be inferred from the language of Exception 1, is that if the
exception is to apply, the violence used by the offender which resulted
in the death of a person must have a reasonable relation to the degree
and duration of the loss of power of self-control that can be reason-
ably expected in the case of a normal person having regard to the
exact nature of the grave and sudden provocation caused, provided
the other requirements of the exception are fulfilled. This principle
has been stated in a slightly different manner in the English cases
cited above 62 and by their Lordships of Privy Council in Attorney
General of Ceylon v. Kumar ssinghege Don John Per era," Here, by
making little change in the wording of the rule as obtained in English
decisions, an attempt has been made to improve upon the original
rule, but it does not wholly meet the points raised above. Much reli-
ance was placed on the Privy Council case. In that case, their Lord-
ships were dealing with an appeal in a case under s. 294 of the Penal
Code of Ceylon. This section closely follows the wording of Excep-
tion 1 to s. 300 Indian Penal Code. In that case, Goddard J., said, 63
60. See Kenny, Outlines of Criminal Law, 17th ed., p. 157, f.n. 2.
61. A.I.R. 1962 Guj. 39 at p. 43.
62. The cases thus cited were R. v. McCarthy (1954) 2 All E.R. 262; R. v. Duffy
[1949] 1 AH E.R. 932.
63. [1953] A.C. 200 at pp. 206-207.

"The words 'grave' and 'sudden 5 are both of them relative terms and
must at least to a great extent be decided by comparing the nature of
the provocation with that of the retaliatory act. It is impossible to
determine whether the provocation was grave without at the same
time considering the act which resulted from the provocation, other-
wise some quite minor or trivial provocation might be thought to
excuse the use of a deadly weapon. A blow with a fist or with open
hand is undoubtedly provocation, and provocation which may cause
the sufferer to lose a degree of control, but will not excuse the use of a
deadly weapon, and in the opinion of their Lordships it is quite wrong to say
that because the Code does not in so many words say that the retaliation must
bear some relation to the provocation it is true to say that the contrary is the
case." Raju, J., might have been particularly impressed by these
remarks. But there is another factor worth taking into account in
this connection.
Voluntarily causing grievous hurt except on grave and sudden
provocation is made punishable by s. 325. If such grievous hurt is
caused by dangerous weapons or means, it is considered aggravated
and a higher punishment is prescribed by s. 326. However, if the
grievous hurt is caused on grave and sudden provocation the code
does not provide for any variation in punishment on the basis of the
dangerousness of weapons or means used.64 So, the framers of the
Code thereby imply that once the gravity and suddenness of the pro-
vocation is proved, it completely overshadows all distinctions on the
basis of the nature of instrument used for the offence. In case of
Exception 1 to s. 300, where the offence is not only committed on
grave and sudden provocation, but also when the offender is deprived
of the power of self-control, the above reasoning applies with much
greater force. It may be, that the deliberate choice of the weapon or
of the mode of its use may go to show that the offender was not dep-
rived of his power of self-control. But simply because the mode of
retaliation was not proportionate to the provocation received, that
does not necessarily mean that the provocation was not grave and
sudden or that it did not deprive the offender of self-control. On the
contrary, a person, who has lost his self-control on grave and sudden
provocation, is most likely to be oblivious of the means and modes of
his retaliatory action. It is highly improbable that a person after
having lost his self-control would use precisely that much force as is
64. See s. 355; for discussion on this point see p. 321, supra.

R. V. KELKAR 343
proportionate to the provocative act. It is submitted, that, there is

nothing in the language of the Exception on which the rule of 'reason-
able retaliation 5 can be legitimately justified. The rule is an un-
warranted and ill-founded restriction on the defence of provocation
and an unreasonable sophistication of the test of reasonable man.
As a matter of fact, in some previous decisions, the defence of
provocation was allowed even though the violence used was not
reasonably proportionate to the provocation given. In the case of
Nga San v. King Emperor,^ the right of self-defence was not allowed,
because it " was difficult to hold that the accused had not the inten-
tion of doing more harm than was necessary for the purpose of that
defence. The continuance of the assault after the deceased had fallen
to the ground rendered that position untenable." But even though
the retaliation was completely out of proportion to the provocative
assault, it was held to be a case covered by Exception 1 to s. 300.
Similarly, in the case of Po Mye v. King,66 it was found that though the
appellant had the right of private defence and was acting under the
impulse to exercise it, he " far exceeded that which any reasonable
person would do." Even then it was held that " the terrible injuries
(inflicted on the deceased) were due to the lack of self-control apparent
in the appellant when he saw his brother struck down suddenly, and
that to the appellant in the circumstances the provocation was grave as
well as sudden." 67 And so the defence of provocation was allowed
under Exception 1 to s. 300 ; it was also held that, as there was no
intention to cause more harm than was necessary (though such harm
was in fact inflicted), the case was also covered by Exception 2 to
s. 300.
The decision in Mir Akbafs case68 is also pertinent to the
present discussion. In this case, one Bakht Bibi, a woman of mature
years, was for some time living voluntarily with the accused. One
day when they were going out in the village together, Bakht Bibi's
brother caught hold of her and started dragging her away from the
accused. Thereupon, the accused who was carrying a rifle with him,
shot the brother dead. It was observed by the court, 69 <c Mt. Bakht
65. [1904] 1 Gr. L J. 473.

66. A.I.R. 1940 Rang. 129,
67. Ibid, at pp. 132-133.
68. A.I.R. 1937 Pesh. 86.
69. Ibid, p. 88.

Bibi was a major and her brother had no legal right to take her by
force when he met her with the appellant and the appellant had got a
right to protect her. The appellant, however, could not have
believed that her brother was likely to cause her grievous injury or
death or that his assault was being made with any of the intentions
which would have entitled the appellant under s. 100 Penal Code, to
cause his death. We are therefore unable to find that Mir Akbar was
justified by any legal right of defence in causing the death..." Here
the court did hold that the appellant had a right to protect Bakht
Bibi, but the accused far exceeded the limits of self-defence allowed
by law, when he killed the assailant. The violence used by the
appellant was certaintly disproportionate to the actual assault caused
by the deceased. However, it was held that " in these circumstances
he acted under grave and sudden provocation and...that that
provocation was sufficient in the ordinary course of human nature to
deprive him of his self-control so that his action did not amount to
murder by virtue of Exception 1 to s. 300, Penal Code..." 7 0 . If the
supposed rule o f ' reasonable retaliation' were recognized in those
days as part of the defence of provocation, then the court could
not have possibly reduced the offence to culpable homicide not
amounting to murder under Exception 1 to s. 300. But, in fact, no
such rule ever prevailed in India (or even in England) before 1942,71
nor any attempt was made to put any such gloss on the wording of
the said Exception.
Fossilization of the reasonable man
The above discussion is illustrative of the attempts at the fossili-
zation or mummification of the reasonable man. The process appears
to be, one of squeezing out the true spirit of the test of reasonable man
by establishing authoritative and pre-determined answers to a pure
question of fact. As Salmond has put it, 72 "The law does not scruple,
if need be, to say that the fact must be deemed to be such and such,
whether, it be so in truth or n o t . . . . The eye of law does not infallibly
see things as they are. Partly by deliberate design and partly by the
errors and accidents of historical development, law and fact, legal
70. Ibid, p. 88.

71. Other cases where the retaliation was not required to be proportionate to the
provocation given—(Guturi) Nagalu, A.I.R. 1928 Mad. 136, where both Exceptions 1
c
and 2 were held applicable.
72. Jurisprudence, 10th ed. p. 71.

R. V. KELKAR 345
theory and the truth of thing, may fail in complete coincidence." The
framers of the Code had scrupulously avoided to follow the English or
other legal systems that rigidly classified in abstract, acts which
would constitute grave provocation and those which would not. 73 The
judges however, often denied to themselves the wise counsel of the
framers of the Code and interpreted the law in the set grooves formed
by English decisions.74
Precedents to be accepted with care

It is repeatedly said that the reasonable man is a normal person
belonging to the same class of society as that of the accused,75 and
that in order to judge the gravity of provocation with reference to
the mental reaction of a reasonable man, he is to be placed in the same
situation in which the accused was placed. What a reasonable man
will do in such a situation depends upon the customs, manners, way of
life, traditional values etc., in short, the cultural social and emotional
background of the class of society to which an accused belongs.76 The
uncertainty and vagueness involved in these considerations, is the inhe-
rent weakness of the objective test. Any sweeping generalizations in
this connection, are sure to bring about inconsistent results. For
instance, in some English decisions77 it was held that "a sudden con-
fession of adultery by either spouse without more can never constitute
provocation of a sort which might reduce murder to manslaughter."
After referring to these decisions, the Madras High Court in the case
of In re Murugian,17* observed, "But it should be noted that these deci-
sions apply to the society in England & countries of Western culture and
73. See Note M, p. 59 (part of it, supra f.n. 13 on p. 329).

74. The course taken by English decisions has been aptly and vividly described
by J. LL. J . Edwards. He says " The net effect of...various considerations is that the
judges have gone a considerable way towards establishing—so far as the law of provo-
cation is considered—a standard portrayal of the make-up and reactions of the
reasonable man. They say he is not impotent and he is not normally drunk. He
does not lose his self-control on hearing a mere confession of adultery provided of
course, that he is married to the adulteress. Furthermore, he remains in control of his
emotions notwithstanding the vilest form of oral provocation, and finally, even if he
loses control he is expected to resort to no more than reasonable measures of retalia-
tion." Provocation & reasonable Man—Another view, (1954) Cri. L.R. 898 at p. 900. At
least this was the position brfore the passing of the Homicide Act of 1957.
75. Ghulam Mustafa v. Emperor, A.I.R. 1939 Sind. 182.
76. Nanavati, A.I.R. 19*2 S.C. 605, at p. 623.
77. Holmes v. D.P.P. (1946) 2 All E.R. 124.

civilization. It is well-known that in Western societies, marital laws

and violations thereof are looked upon with much greater latitude and
the award of damages in civil court 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." The court
held that such a confession amounted to grave provocation. The
Bombay High Court, on the other hand, in the case of Jairam v. State
of Bombay,1^ observed, "Bearing in mind the fact that adultery though
frowned upon in our country is not uncommon in the village com-
munity 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 in this case referred to the case of In re Murugian
cited above, but preferred to follow English decisions and held that
such a confession of adultery would not amount to grave provocation.
The moral is, precedents in this field are to be laid and used with
utmost care, lest they may destroy the very spirit—the flexibility—of
the test of reasonable man.
Things Personal to the Accused—How far Relevant in applying the Test

of Reasonable Man
The test of 'grave and sudden' provocation, as stated above by the
Supreme Court in the Nanavati case is 'whether a reasonable man, be-
longing to the same class of society as the accused, placed in the situa-
tion in which the accused was placed, would be so provoked as to lose
his self-control.* The words—'the situation in which the accused was
placed' definitely point towards 'the customs, manners, way of life
traditional values etc/, in short the cultural, social and emotional
background of the society to which an accused belongs. But whether
the phrase also refers to the age, sex, physical characteristics of the
accused, is not made clear in the case. If the defence of provocation
is to serve its purpose, 78 these things, though in one sense personal to
77a. A.I.R. 1957 Mad. 541 at p. 546.

77b. A I.R. 1959 Bom. 463 at p. 465.
78. The framers of the Code say, " In genenal...we would not visit homicide
committed in violent passion, which had been suddenly provoked, with the highest
penalties of law. We think that to^treat a person guilty of such homicide, as we
should treat a murder, would be highly inexpedient course which would shock the

R. V. KELKAR 347
the accused, will have to be taken into account, while deciding about
the 'gravity' of provocation ; and it would be a bad day for our law, if
our courts would ever think of following the English decisions in the
cases of Bedder,19 McCarthy,80 or Smith.B1
The age of the accused was taken into account in some cases.82
Similarly, the fact that the accused was intoxicated when he got
provoked could be taken into account in any enquiry as to the provo-
cation. 83 Apart from intoxication affecting the normality of the accus-
ed's mind, there may be other factors creating or contributing to the
abnormality of the mind and making it more susceptible to provoca-
tion. Whether all such factors are to be taken into account while
judging the 'gravity' of the provocation, poses a difficult problem.
If all the factors are to be taken into account, then hardly anything
objective remains in the objective test of reasonable man. Then the
only question is, whether the offence was committed while the offender
was in fact deprived of the power of self-control. The word 'grave'
becomes meaningless, if such a view is to be adopted. On the other
hand, if all such factors that contribute to the abnormality of the
mind—whether temporary or otherwise—are to be excluded, the test
of 'reasonable man' and consequently the defence of provocation
would be reduced to a bare skeleton that would 'shock the universal
feeling of mankind and would engage the public sympathy on the side
of the delinquent against the law'. No purposeful attempts have been
made by the courts to evolve any satisfactory solution. In some cases,
following English decisions, the courts have held that 'the gravity and
universal-feeling of mankind and would engage the public sympathy on the side of
the deliquent against the law."—Note M p. 59.
79. [1954] 1 W.L.R. 1119. In this case, the fact that the accused was impotent
was held to be irrelevant while judging the adequacy of provocation. For criticism of
this decision, see Russell, pp 605-606; Odgers, (1954) Cambridge L.J. 165-168; 70
L.Q.R. 442 ; 33 Can. Bar Rev. 93.
80. [1954] 2 Q,.B. 105, That the accused was drunk and so was more susceptible
to provocation, was considered to be immaterial for deciding the issue of provocation.
81. jSmith (1914) 11 Cr. App. R. 36 cited by Glanville Williams in [1954] Cr.
L.R. at p. 743. That the accused was likely to get excited by light provocation
because of her pregnancy, was held to be of no consequence in deciding the issue of
provocation.
82. Hiromal, A.I.R. 1948 S. 63.
83. Nga San [1904] 1 Cri. L.J. 473. See also Naga Po Nyun, A.I.R. 1936 Rang.
325.

suddenness' of the provocation under the Exception has reference to a

normal person placed in the position of the accused, and not to the
hypersensitiveness of the accused himself.'84 This is further explained
when it is observed, " T h e court must consider the reaction not of the
normal man in the abstract but of the normal man whose impulses are
conditioned by the same environment as the accused." 85 Now, what
environments are relevant? Are they only those that existed at the
very moment when the homicide was committed? Some time-lag is
inevitable. But what is the time-lag? To say that it depends upon the
circumstances of each case, is only begging the question. If the circum-
stances, remote in point of time from the homicide, are to be taken
into account, it will only mean, taking into account the abnormality of
the mind of the reasonable—normal-man, created by these remote
circumstances. By this logical process of thinking, the objective test
of reasonable man is widened to such an extent as to make it more or
less a subjective test. It has been held that, 86 "Whether provocation
is grave and sudden, such as to deprive the accused of the power of
self-control, is a question of fact to be determined upon the peculiar
circumstances of each case. In deciding the question the court must take
into account the condition of the mind in which the offender was at the time of
the provocation." (Emphasis added) That "the appellant was a man of
hot temper and there were also indications that he and his wife were
not on very good terms", was taken into account while considering the
gravity of the provocation given by the wife.87 In a dissenting judg-
ment, Campbell, J., in the case of Gokool Bowree, observed,88 "In the
c a s e , . . . . of a poor man whose early rice in these days of scarcity is
peculiarly valuable to him and who, after working in the day, is com-
pelled by repeated thefts to sit up and watch it, who catches a thief
in the act of stealing that rice, and who on the impulse of the moment,
rushes at the thief, and belabours him with a stick in a fatal way, is
there not really grave and sudden provocation? I think that he
did." The Madras High Court in the case of Empress v. Khogayi, has
observed, 89 " I n determining whether the abusive language used by the
84. Gur Dyal v. State, [1954] A.L.J. 253, at p. 254.

85 Per Justice Dhawan in Mahood [1961] A.L J. 209 at p. 212.
86. Des Raj v. Emperor [1928] Cr. L.J. 454 at p. 456.
87. Krishna Chandra Pali, A.I.R. 1929 Pat. 201.
88. [1866] 5 W.R. (Cr.) 33 at p. 40.
89. [1879] 2 LL.R. Madras 122 ht p. 123.

R. V. KELKAR 349
deceased was grave enough, "it is admissible to take into account the condi-
tion of mind in which the offender was at the time of the provocation. In the
present case the abusive language used was the foulest kind and addres-
sed to a man already justly enraged by the conduct of deceased's son." (Em-
phasis added). This case was referred to by the Supreme Court in the
case of Nanavati.S9* But it is not clear whether the court approved these
observations. Probably not. However, the Supreme Court has no
hesitation, after referring to various decisions, 90 to hold that "the
mental background created by the previous act of the victim may be taken
into consideration in ascertaining whether the subsequent act caused
grave and sudden provocation for committing the offence." 91 It
appears that by making a restricted allowance in favour of the subjec-
tive test of provocation, the Supreme Court has attempted to strike a
compromise between the subjective and objective tests of provocation.
However, such compromise is hardly ever satisfactory.
If the pre-provocation mental condition of the accused, is to be
taken into account while considering the adequacy of the provocation,
it should be immaterial whose acts were responsible for causing such
mental condition. Otherwise the logical analysis of the rule as
propounded by the Supreme Court, would suggest that the pre-
provocation mental condition of the accused i.e., the temporary
abnormality of the accused which is otherwise irrelevant, is made
relevant in order to reprobate the conduct of the victim. 92 This would
be something totally foreign to the purpose for which the defence of
provocation was created. It is plausible to argue that the rule only
means that all the acts of the victim should be considered as a whole.
If this is the real meaning of the rule, it would have been better if it
were expressed clearly in so many words. Secondly if such a meaning
is attached to the extant rule, it would become clumsy when considered
in relation to the other requirements of the defence of provocation,
namely, the provocation must be sudden and the homicide is committed
while the accused is deprived of the power of self-control.
89a. Supra A.I.R. 1962 S.C. 605 at p. 628.

90. Boya Munigadu, I.B.R. 3 Mad. 33. In re Murugian, A.I.R. 1957 Mad. 541.
InreNarayan, A.I.R. 1958 Andh. Pra. 235. Balku, A.LR. 1932 All. 532; Babu Lai
A.I.R. 1960 All. 223.
91. Nanavati, supra, A.I.R. 1962 S.C. 605 at p. 630.
92. See the observations about the influence that work on the mind of the judge
while applying the test of reasonable man, supra p. 334.

Victim's knowledge about the abnormality of the accused—irrelevant

There is no reason to suppose that the knowledge or ignorance on
the part of the victim about the abnormal mental condition of the
accused, should make any real difference in the operation of the
defence. Provocation is grave or otherwise, depending upon its
capacity to deprive a reasonable man of his power of self-control.
It may be that the mental abnormality—whether temporary or
permanent—of the accused, to a certain extent, might be taken into
account while measuring the gravity of the provocation given to
him. But any inquiry, as to who caused the mental abnormality, or
whether the victim knew about the abnormality at the time he gave
provocation, is off the mark. The object of the defence of provoca-
tion 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 the victim. It is not
meant for disapproving the conduct of the victim, or for censuring the
attitude of the deceased. However, it was observed by Verma, J., in
the case of Bhuranga Uraon9*, " and in these circumstances if the
deceased hit him with a clod of earth knowing full well that the accused's
intelligence was not of normal kind, I would hold that in these circum-
stances the provocation was grave and sudden so as to bring Exception
1 to s. 300 Indian Penal Code into play." Again, Justice Dhawan, in
the case of Mahmood, observed94 " The second type of abnormality may
be completely out of control of the person who is victim to it as for
example, a discharged soldier whose nerves are completely shattered by
prolonged fighting in the service of his country or a person whose
capacity for self-control has been destroyed by a painful disease, the
tormentor being aware of the abnormality in each case and taking advantage of
it. * A question which one day may have to be considered is what
would be the position if a man deliberately irritated another whom he
knew to be constitutionally liable to lose control of himself for certain
small causes, with the consequences that the unfortunate object of
his provocation retaliated immediately by killing him\ " 94 a If such
93. A.I.R. 1935 Pat. 506 at p. 508.

94. [1961] A.L.J. 209 at p. 214. **
94a. Kenny, Outlines of Criminal Law, p. 135.

R. V. KELKAR 351
a question actually arises, there should not be any hesitation in hold-

ing that, knowledge on the part of the victim about the mental
abnormality of the accused, is totally immaterial while deciding the
issue of the c gravity' of provocation. Any attempt to bring in
extraneous considerations—totally foreign to the test of reasonable
man—should be positively avoided.
Provocation must be sudden
In order to invoke the operation of Exception 1 to s. 300, it is also
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."
As the loss of self-control may be caused by several reasons like
temptation, fear, provocation, jealousy etc., this in itself cannot be
considered as an extenuating circumstance. But if there are circum-
stances suggesting the heat of passion to be just the consequence of
human frailty, law makes some allowance for the common human
weakness and mitigates the punishment suitably. I n case of the
defence of provocation, the law requires that the provocation is
sufficiently grave and sudden so as to, and must actually, cause the
accused to lose his power of self-control.
The word * sudden ' according to its ordinary connotation means
" occurring or come upon or made or done unexpectedly or without
warning, abrupt, abnormally rapid, hurried. 5 ' 95 The suddenness of the
provocation is to be ascertained not according as to what the offender
feels to be unexpected or sudden, but according to the test of reason-
able man, that is, whether a reasonable man placed in the situa-
tion in which the accused was placed, will consider it as unexpected
or sudden. 96 When provocation which is sufficiently serious, unexpect-
edly swoops down upon a mind—not too strong, the mental jolt caused
thereby, would in all probability, result in loss of self-control. ' Grave
and sudden s provocation is, therefore, defined in terms of its
capacity to make a reasonable man lose his self-control.97
When a person is suddenly confronted with grave provocation,
normally the consequential loss of self-control is almost instantaneous.
95. Vide, Concise Oxford Dictionary, I ed.

96. 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. For
the arguments in support of objective test of provocation, see p . 330 supra.
97. Vide, Nanavati, supra, A.I.R. 1962 S.C. 61)5 at p. 630.

Naturally, if there is some interval between the provocation and the

loss of self-control, it would generally mean that one is not the cause of
the other. In such a case the loss of self-control not being caused by
sudden provocation, the defence under Exception 1 to s. 300 will not
be available. 98
There appears to be some confusion about determining the
time of the occurrence of provocation. Suppose, a husband un-
expectedly discovers his wife committing adultery with another;
undoubtedly, there is grave and sudden provocation, and if he
kills either or both, his case would be covered by Exception 1."
But in case, where the wife, in the absence of her paramour, con-
fesses to the husband of her adulterous intercourse, and the husband
thereby loses his self-control, goes to the wife's paramour and kills
him, difficult questions may arise before the Exception can be applied.
Was it the paramour who gave provocation to the accused ? Assu-
ming that the paramour is considered to have given provocation, what
is the time of provocation ? The answer to this question is of crucial
importance while determining whether the loss of self-control was the
immediate result of provocation. Any time-lag between the provo-
cation and the loss of self-control will almost negative the causal link
between the two, and Exception 1 to s. 300 cannot be availed of.
Then, is it the act of sexual intercourse that amounts to provocation
or is it the confession of such act that constitutes provocation ? If it
were to be the former, there would be considerable time-lag between
the provocation and the loss of self-control, and the defence would not
be available. This point was raised and debated before the Supreme
Court in the case of Nanavati} The Court observed.
" The counsel for the accused contends that the act of Ahuja,
namely the seduction of Sylvia, gave provocation though the fact of
seduction was communicated to the accused by Sylvia and that for
the ascertainment of the suddenness of the provocation it is not the
mind of the person who provokes that matters [as was contended by
the prosecution] but that of the person provoked that is decisive. It
is not necessary to express our opinion on the said questions, for we
98. Sheikh Boodhoo, 8 W.R. 38.

99. Ramtahal Kahar, (1869) 3 B.L.R.A. Cr. 33 ; Man Singh, A.I.R. 1959 M.P.
267. Said Ali [1890] P.R. No. 8.
I. A.I.R. 1962 S.C. 605.

R. V. KELKAR 353
are satisfied that, for other reasons, the case is not covered by
Exception 1 to s. 300. 2 " Thus, the point is not yet conclusively
decided.
It is submitted, that the time interval being material to establish
the causal relation of provocation with the deprivation of the power
of self-control, it should be determined with reference to the point of
time when the provocation reaches the mind of the accused and not
when the provocative act was done by the deceased. Any time-lag
between the provocative act and its knowledge by the accused should,
therefore, have no bearing on the inquiry regarding the causation of
the loss of self-control.
Regaining of self-control—Objective standard of Reasonable Man not

applicable.
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. How-
ever, it was observed by Justice Oak in the case of Mahmood^..."the
word "sudden" involves two elements. First, the provocation must be
unexpected...Secondly, the interval between the provocation and the
homicide should be brief." Following recent English decisions, it has
been held in some cases, that if sufficient interval has elapsed since
the provocation, to allow a reasonable man time to cool and death is
caused thereafter, the case will not be covered by Exception 1 to
section 300. There is nothing in Exception 1 to support such a
restrictive rule. The wording of the Exception is"...The offender,
whilst deprived of the power of self-control, .causes the death..." and
not "whilst deprived of the power of self-control...and before the lapse of
reasonable time to regain self-control, causes the death..." If the legislature
had intended to provide for such a restriction on the defence of provo-
cation, they could have very easily done so. But in the absence of
any such indication, the only meaning of the requirement regarding
2. Ibid, at p. 626-627.
3. [1961] A.L.J. 209 at pp. 209-210.

loss of self-control is, whether the death was caused before the offender
actually regained self-control. An inquiry as to what time would be
sufficient for a reasonable man to regain self-control, may be useful to
some extent for determining whether the accused in the particular case,
committed the offence after regaining self-control. But it will remain
primarily a question of fact, depending upon the circumstances of each
case. 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. In the
case of Chanan Khan v. Emperor, Justice Din Mohammad, rightly
observed 4 " I t is 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 the exception. Much depends on the individual
characteristics of the accused and that element cannot be ignored in the determi-
nation of this matter " (Emphasis added)
It appears from some recent decisions5 that the courts have over-
looked the plain words of the exception and also the precedents referred
to above, and are inclined to put such constructions on "sudden pro-
vocation" or on the clause "whilst deprived of the power of self-control,"
as to incorporate in our law, the rule followed by English Courts in
recent years, namely—the defence of provocation will not be available
if sufficient interval has elapsed since the provocation to allow a
reasonable man time to cool, and the death is caused thereafter.
However, as pointed out earlier, the wording of the exception does not
give any scope for such interpretations.
Probably, it may be argued, as it was suggested in relation to English
law of provocation, that "...it would be anomalous for the law to refuse to
indulge the accused's idiosyncrasies in relation to the nature of the
provocation yet recognise them as affecting the length of time it takes
him to reassert his self-control after receiving the provocation." 6 This
is another instance of the 'logical expansionism' of the 'reasonable man.*
It is submitted, whatever might be the reasons for the English
courts to evolve the rule regarding "reasonable interval to cool down"
it would be repugnant to every canon of construction to deduce such
4. (1943) 45 P.L.R. 162 at p. 164.

5. Amarsingh Rangaraju, A.I.R. 1956 M.B. 107 (D.B.); Bansi, A.I.R. 1956 All.
668 (D.B.).
6. B. J. Brown, * Subjective Element in Provocation', University of Malaya Law
Review, Vol. I, p. 288 at p. 307 (1959).

R. V. KELKAR 355
a restrictive rule from the wording of the Exception. Secondly, if the

idea in having a deviated interpretation, is to make the standard of
reasonable man uniformly logical and consistent, it leads to another
illogical result. For instance, if a person who is having extraordinarily
cool mind and who is least perturbed by a really serious and sudden
provocation according to reasonable man's test, causes the death of
the person giving provocation, logical consistency demands that in
such a case also, the individual characteristics of the accused should
not be taken into account and he should be given the benefit of the
defence of provocation. But both English and Indian law do not
allow the defence in such a case7. Therefore, it was observed about
the present day English law that it "takes into account the subjective
mental element when it operates against the prisoner and yet refuses
to do so when it would operate in his favour" 8 . Fortunately, as the
Exception does not contain any rule regarding 'reasonable time to
cool down', our law will remain immune from any such criticism pro-
vided our courts are not tempted to follow English decisions in total
disregard of the wording of the Exception and of Indian precedents.
The Supreme Court appears to be very cautious in explaining the
law on this point. In the Nanavati case the court observes9, "The
fatal blow should be clearly traced to the influence of passion arising
from that provocation and not after the passion had cooled down by lapse of
time, or otherwise giving room and scope for premeditation and
calculation." It is to be hoped, that hereafter at least, the objective
standard of 'reasonable man cooling down5 is not adopted for the
purposes of the defence of provocation.
7. See the wording of Exception 1 to s. 300.

8. For English law on this point, see Kenny, 17th ed. p. 161 ; Russell, 11th ed.
Vol. I, p. 605.
9. A.I.R. 1962 S.C. 605 at p. 630,

THE APPELLATE SYSTEM
The human mind is admittedly fallible, and in most professions

the possibility of occasional error is admitted and even guarded against.
But the legal profession is the only one in which the chances of error
are admitted to be so high that an elaborate machinery has been pro-
vided for the correction of error—and not a single error, but a succes-
sion of errors. In other trades to be wrong is regarded as a matter for
regret; in the law alone is it regarded as a matter of course The
institution of one Court of Appeal may be considered a reasonable
precaution ; but two suggest panic. To take a fair parallel, our great
doctors, I think, would not claim to be more respected or more advanc-
ed in their own science than our greatest jurists. But our surprise
would be great if, after the removal of our appendix by a distinguished
surgeon, we were taken before three other distinguished surgeons, who
ordered our appendix to be replaced ; and our surprise would give
place to stupefaction if we were then referred to a tribunal of seven
distinguished surgeons, who directed that our appendix should be
extracted again. Yet such operations, or successions of operations,
are an everyday experience in the practice of the law Indeed, it
says much for the patience and public spirit of our inferior judges that
they devote such thought and labour to their work in these discourag-
ing conditions, and show no resentment towards junior counsel who,
at the close of a ten days' inquiry and a protracted judgment, inform
the learned judge responsible for both that they will appeal against
his decision ...The people may be taught to believe in one Court
of Appeal; but where there are two they cannot be blamed if they
believe in neither. When a man keeps two clocks which tell the time
differently, his fellows will receive with suspicion his weightiest pro-
nouncements upon the hour of the day, even if one of them happens
to be right. Moreover, the expense of successive appeals must make
the acquisition of justice difficult for the rich and impossible for the
poor. The unsuccessful litigant who cannot afford to go beyond the
Court of Appeal must always be haunted by the thought that in the
House of Lords he might have won; while the Inland Revenue, rely-
ing on the public purse, can pursue their unjust claims to the end and,
if they lose, can send the bill to the taxpayer.
—From Board of Inland Revenue v. Haddock (Why is the House
of Lords?) in A.P. Herbert, JJncommon Law, p. 255.

024 - Provocation As A Defence in The Indian Penal Code (319-355)

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024 - Provocation As A Defence in The Indian Penal Code (319-355)

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PROVOCATION AS A DEFENCE

An offence committed in the sudden heat of passion on grave pro-

♦Lecturer, Faculty of Law, University of Delhi.

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General Scheme of the Defence—Defective Legislative Technique

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The Code makes a distinction between simple hurt and grievous

Homicide not amounting to Murder. The defence of provocation as provided in Ex­

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provocation. Again, the nature of provocation referred to in s. 355

18. See Exception 1 to s. 300.

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the power of self-control,25 but it also does not necessitate the

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and severally. If they were to mean only something already covered

29. (1887) 22 P.R. (Gr.) No. 32, p. 62 {Barkatulla).

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of his wife by fracturing her skull by a single blow, probably from an

32. Barkatulla, supra, at pp. 68-69.

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The discussion so far pertained to the scheme of sections dealing

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Act, 1956, disqualifies a person guilty of murder from inheriting the

Present unsatisfactory position of law

any other property in furtherance of the succession to which he or she committed or

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would be found in the tendency of the Indian judges to follow English

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certain aspects of the extent defence of provocation still remain

Objective Standard of Provocation accepted

16. First Report, s. 271, cited in Ratanlal, 20th ed. at p. 747.

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the accused was placed, would be so provoked as to lose his self-

Drawbacks and limitations of the objective test

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the confusion and the consequent dissatisfaction, in the operation of

Emergence of 'Reasonable Man'—What is he ?

According to the test of reasonable man, only such provocation

23. See Queen Empress v. Chunni (1896) 18 All. 497.

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view finds support in the observations of Justice Dhavan in the case

Relationship of the accused in cases involving intercourse as an act of

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provocative act as husband, (or as father, brother or son of the woman

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is a real threat to and a serious encroachment upon the flexible test of

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appellant ought to have exercised, but whether he lost, control over

44. Murgi Munda, supra, at p. 447.

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Relation between the mode of resentment and the provocation

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51a. [1949] 1 All E.R. 932.

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observations were repeated in subsequent cases and thereby apparent-

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there are exceptional circumstances which do not permit the exercise

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proportionate to the provocative act. It is submitted, that, there is

65. [1904] 1 Gr. L J. 473.

Homicide not amounting to Murder. The defence of provocation as provided in Ex