Whether the Defence of Grave and Sudden Provocation be Applied in the Cases of Prolonged Provocation

Introduction

The doctrine of provocation is a well-established principle recognised in Exception 1 to Section 300¹ IPC, 1860. This principle is used to reduce the criminal liability of the accused from murder to culpable homicide not amounting to murder in cases of intentional killing, which was a reaction towards the grave and sudden provocation. Grave and sudden provocation gain its rationale mainly from two principles; where one suggests for reduction of criminal liability as the accused was provoked to the extent where he was impaired with his ability to reason, and the other indicates that the liability should be reduced as the deceased was the one who provoked him to that extent.

Theoretical framework

Exception 1 to Section 300² reads as:

300. Murder. — * * *

Exception 1. —When culpable homicide is not murder. —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 person by mistake or accident.

This Exception talks about a situation of an irresistible impulse where the accused was deprived of his power to self-control and, out of extreme anger, caused the person's death. An essential requisite in this condition is that the provocation must be grave and sudden, rendering a person incapable of reasoning. Through this Exception, the accused does not get full defence rather this is a case of diminished responsibility.³

In this Exception, the importance of “sudden” is that if the provocation is not sudden, the impact will not be as much upon the mind as to make him lose his self-control. As the time gap after the provocation increases, the chances of regaining the power of self-control will increase. In other words, the accused will have a more significant cooling-off period.

The leading authority of this principle is K.M. Nanavati v. State of Maharashtra⁴ which lays down that:

85. … The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after the provocation which had cooled down by lapse of time or otherwise giving room or scope for premeditation and calculation.

While talking about grave and sudden provocation, it is empirical to talk about R. v. Duffy⁵ where Devlin, J. gave the classic definition, which was recognised in this case. He explained provocation as an act or a series of acts that might include spoken words, which would make any reasonable man a sudden and temporary loss of self-control. That loss of self-control renders him so subject to the passion that he is, for that moment, not the master of his mind.

Where this case clearly lays down a presumption, which in fact is still in practice, that the lapse of time might give room for premeditated and calculated murder and invalidate the causal link between the loss of control and provocation. The question is whether the lapse of time can result in an opposite impact of cooling down, giving rise to negative provocation? And whether the objectivity test holds ground in every situation where this defence is attracted?

Battered Wife Syndrome

Battered wife syndrome is a psychological tool to understand the mental state of battered wives which is a term given to wives who, after enduring severe torture for a prolonged period, kill their batterers because of the psychological impact or end the cycle of prolonged violence.

If we go by the Exception under Section 300 and as per the test laid down by Lord Devlin in R. v. Duffy⁶, the wife can only claim the defence if she committed the act in “sudden and temporary loss of self-control” which is contentious with the current situation.

The question in these situations is whether the person has the requisite mens rea that the law requires for the commission of offence? The psychological state of the defendant plays a crucial role in such situations as the mental state of the defendant negates the requisite mens rea required to commit the offence, which should work as a legal defence as per the Penal Code.⁷ It is assumed that where there is a prolonged series of torture and provocation is an ongoing process, there might be a delayed reaction towards the torture when the person’s tolerance reaches its peak.

Similarly, it was held in R. v. Ahluwalia⁸:

That women who have been subjected frequently over a period to violent treatment may react to the final act or words by what he calls a “slow-burn” reaction rather than by an immediate loss of self-control. We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a “sudden and temporary loss of self-control” caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.

This case gave a new terminology to the negative provocation, which is that the torture might lead to the effect of a slow burn rather than an immediate loss of self-control. It also talked about how the long delay and stronger evidence of deliberation make it more likely for the defendant to have negative provocation.

In Manju Lakra v. State of Assam⁹ the Indian court for the first time extensively dealt with the question of battered wife syndrome and allowed the accused to take the defence of the Exception to Section 300 as she endured a long series of torture.

The objectivity test applied in several cases is whether a reasonable man placed under similar circumstances would be rendered so provoked that he would opt to cause the death of the deceased. The factor considered in the objectivity test is whether the final act committed by the deceased was so potent and rendered the accused in such an irresistible impulse that they lost their power of self-control. What this test fails to accomplish is the account of subjectivity and the experience of the accused, which developed through the course of time, making the accused reach a point where her tolerance breaks that might or might not be associated with the final act committed by the deceased.

Provocation works very differently in cases of battery as it is a long-term and continuous process, and it is very difficult to analyse a specific trigger point that resulted in the commission of the offence. This is a case of sustained provocation. That is why these cases cannot be measured strictly by the objectivity test, as it goes against the principle of equity, natural justice, and good conscience.

Sustained provocation and Indian court

There are many cases in foreign jurisdiction that talk about sustained provocation and how it should be read, with the exception of provocation. In R v. Chhay¹⁰ which was passed by an Australian court. A Bench headed by the then Chief Justice who heard the matter acknowledged that a person might lose his or her self-control when the abuse has been continued for a lengthy period of time, even when there was no specific event that triggered the commission of the offence. The Court also acknowledged the subjective experience and held that the trigger might not happen at the immediacy of threat but on cyclical violence.¹¹

Though battered women syndrome has not yet been recognised by the Penal Code, the psychological impact it holds on the defendant has been considered while deciding upon the cases.¹² Though, the question now arises whether the defence of sustained provocation is only available to battered wives and not any other relationship?

The Indian courts have acknowledged the principle of sustained provocation in many cases and not just for battered women. It is imperative to note what the Madras High Court said in Suyambukkani, In re¹³ where they judicially recognised the concept of sustained provocation in force as they believed the framers of the Penal Code envisioned this. They pointed out a cardinal difference between the Exception engraved in Section 300 and sustained provocation, as while the Exception talks about grave and sudden provocation, sustained provocation is a series of grave acts, grave in nature, endured over a certain period of time. Sustained provocation cannot be equated to sudden loss of impulse; rather, it must be understood how the final act worked like the last straw breaking the camel's back. It was provided that sustained precaution was ejusdem generis with the other exceptions as ill-will and premeditation are absent.¹⁴

Poovammal v. State¹⁵ is another landmark judgment on the said issue which efficiently pointed out the essence of time in such matters. They opined that there might be times when the offender does not react at that particular time, but it lingers in his mind and continuously torment the person, which leads it all to erupt and, at one point, lose his self-control which might lead to the commission of the offence. It is that breaking point of the accused that makes him commit the murder of the deceased.

When it comes to identifying whether the provocation was grave enough to push the accused at that stage, the previous acts committed by the deceased must be measured to understand whether they held the gravity to hold a negative impact on the accused or not.¹⁶ The defence should be allowed as the trigger and loss of self-control cannot be viewed independently; for that the acts which led up to the provocation must be taken into account.¹⁷

Need to reform the law with changing time

While countries like the United Kingdom, Australia, and the United States have acknowledged the issue of prolonged provocation, the Penal Code is far from addressing the issue. Some courts in India, though, have incorporated the same in some cases, but the proper recognition of the matter remains untouched. Through this article, we tried to understand the gravity of the subject. Like any other exception in the Penal Code, the prolonged provocation must be incorporated as a defence because the requisite mens rea required to commit the offence is absent. The need for such incorporation is that because of a lack of explicit defence lower courts are reluctant to grant such defence to the accused, which is unjust, unreasonable, and inequitable.

To that end, it is proposed that it would be expedient in the interest of justice if another Exception of sustained provocation is added under Section 300 of the Penal Code.