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THE INDIAN PENAL CODE
R. V. KELKAR*
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
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.
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.
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
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.
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.
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
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.
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."
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.
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."
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.
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
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.
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.
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
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
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.
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.
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.
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