Origins of Provocation Defence The early common law presumed[1] all killings to be the consequence of malice aforethought[2] and

uniformly applied the penalty of death.[3] The lack of discretion thus given English courts in sentencing defendants in different types of homicides contributed to the development of provocation theory. For example, courts were unwilling to convict defendants when the killing occurred in the confusion of a brawl, which they saw as a less morally objectionable form of homicide. In the absence of evidence of malice aforethought, courts began to carve out exceptions to the rule and excused the defendant for his crime.[4] In the seventeenth century, however, Englands draconian law began to change after Parliament passed a series of statutes differentiating between types of homicide. A killing that occurred upon a sudden brawl or contention by chance was no longer believed to involve malice aforethought. The moral culpability of the defendant, therefore, provided the basis for drawing the distinction between murder and manslaughter. The law, under the rubric of provocation, now recognized the infirmity of human nature and allowed an accused to rebut the presumption of malice with evidence of the provocative conduct of the deceased. Provocation theory thus introduced a new factor into the equation determining the degree of culpability of a defendant. As a result, it came to be thought that if the deceased had given the accused enough reason to react in the manner that he did, then there was no malice in the accuseds actions and the killing was not murder[5] but rather manslaughter, a non-capital offence. As provocation theory evolved, the most important task the courts faced was determining what acts of the victim could constitute adequate provocation. In 1707 Lord Holt specified four categories of acts that constituted legally sufficient provocation. These were:

Hearing angry words followed by a physical assault. Seeing a friend being assaulted. Observing a citizen detained by force. Seeing ones wife in bed with another.

Similarly there were clear ideas on what acts did not qualify as provocative acts in order to prevent the weakening of the normative force of law. The acts legally insufficient at common law to constitute provocation included:

Mere words. Insulting gestures. Trespass to property. Misconduct by a child or servant. Breach of contract.

When the allegedly provocative act fell within one of these categories, the accuseds act of killing the provocateur was considered a disproportionate response and, therefore, malicious. Classifying the multitude of possibly provocative acts ultimately proved too difficult and led judges to abandon the per se approach.[6] Accordingly, the adequacy of provocation became a question of fact for the jury to determine according to an objective standard. Courts explained that the jury was better able to make the moral decision as to what constituted sufficient provocation because the jury was more experienced in the workings of passion. In order to determine the adequacy of provocation, however, the jury was to use the Reasonable Man Test.[7]

Definition of Provocation Indian definition :The Indian Penal Code is one such Statute that deals with the punishments that are to be awarded for the breaking of laws in India relating to crimes. The code covers a variety of crimes and describes in detail the punishments also.

Offences against the human body is a vast area of offences dealt with in the Indian penal Code. It also covers the offences of homicide and murder. Section 299 and Section 300 of the Indian Penal Code deal respectively with homicide and murder. Under English Law, homicide is called manslaughter. Section 300 says that culpable homicide is murder when the person who commits such homicide intends to cause such death or if he causes any serious bodily injury knowing that in all probability, it will result in death. Exception 1 to Section 300 of the Indian Penal Code, 1860 deals with the issue of murder resulting from provocation. The provisions for provocation in the Indian Penal Code are largely based on English common law, but certain changes have been brought up keeping in mind the heterogeneous and multicultural communities that we have in India.[8] For the defence of provocation to be invoked, a prima facie case of murder has to be established. The defence basically aims at reducing the charge of murder to that of culpable homicide not amounting to murder. Exception 1 to Section 300 of the Indian Penal Code, 1860 deals with the issue of murder resulting from provocation. It reads as follows[9] :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. 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. Second. 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 is a question of fact. The statute explains to us that murder that results as a result of grave and sudden provocation is nothing but culpable homicide not amounting to murder. The exception cannot be used in the following cases :

In the case of self induced provocation. In case a public servant in the course of his duty gave the provocation. In case the provocation was given by a person acting in self defence.

The definition of provocation as explained by the Supreme Court of India in the case of K. M. Nanavati v. The State of Bombay[10], is as follows[11] :

The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society to which the accused belongs, and placed in the situation in which the accused was placed, would be so provoked as to lose his self-control. In India, words or gestures may also, under certain circumstances, cause grave and sudden provocation to an accused to an accused so as to bring his at within the first exception to section 300 of the Indian Penal Code.

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. 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.

English definition :The common law states under Section 3 of the Homicide Act, 1957 (UK) as follows : where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury, and in determining that question, the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man[12] In the case of R v. Duffy[13], the court gave a very clear definition of the term provocation which is as follows :Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.[14] American definition :In American legal parlance, provocation is generally referred to as emotional disturbance.[15] ORS 163.115 provides as follows[16] :(1) Criminal homicide constitutes murder when (a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance. (2) The emotional disturbance that is the cause for the homicidal act should not be a result of the actions of the accused himself, those acts either being totally intentional or due to the accuseds negligence or recklessness. The reasonableness of the persons act shall be determined from the standpoint of an ordinary person in the accuseds situation under the circumstances as the accused believes the to be. This can be understood as follows :In order for a killing which would otherwise be murder to be reduced to manslaughter under the rule of provocation there are four requirements:

There must have been adequate provocation. The killing must have been in the heat of passion. It must have been a sudden heat of passion i.e. the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool. There must have been a causal connection between the provocation, the passion, and the fatal act.

What constitutes provocative conduct?

Words alone :-

Indian position :Under the Indian law, it is well established that words alone, whether in the form of insults or abuses or whether in the form of providing information regarding adultery etc. can amount to provocation. This particular position of Indian law is largely based on the 1837 draft of the Penal Code wherein the following is provided : it is an indisputable fact, that gross insults by word or gesture have as great a t endency to move many persons to violent passion as dangerous or painful bodily injuries; nor does it appear to us that passion as excited by insult is entitled to less indulgence than passion excited by pain. It would be a fortunate thing for mankind if every person felt an outrage which left a stain upon his honour more acutely than an outrage which had fractured one of his limbs[17] A case in which mere words were held to be insufficient to constitute provocation is that of State v. Mullan.[18] In this case,[19] it was held that the person who commits murder cannot assume moral indignation or protective attitudes meaning that a person who himself breaks the law[20] in another manner cannot adopt a virtuous stand and seek justification for his criminal act which resulted out of a questioning of the earlier unlawful act. English position :In the case of Holmes v. Director of Public Prosecutions[21], the court held that mere words did not fit the bill as far as provocation was concerned. The court thought that the statements of the deceased in this case pertaining to the confession of adultery was not of such nature as to provoke the appellant. Also insults could not amount to provocation. Thus, the court observed that provocation by mere words does not reduce murder to manslaughter.[22] However, words alone could amount to provocation in circumstances of exceptional and extreme character or if the words were of a violently provocative character. However, the Section 3 of the Homicide Act, 1957 (UK) provides that things said or done or both amounts to provocation. Thus, the jury may use this provision to judge whether things said alone would provoke a reasonable man or not. Cumulative provocation :Indian position :Indian courts have accepted the principle of cumulative provocation ever since the inception of the code. Courts could relegate all matters having an element of time in them to the requirement of suddenness, leaving alone matters not related to the time factor to be framed under the head of grave provocation.[23] Under sudden provocation, the following could be considered :

Response to the provocation (the homicide) was unexpected as opposed to planned and calculated. Interval between the homicide and the provocation must be short. Accused is operating under loss of self control.

But what matters most is whether the previous provocations however numerous the occasions, had an impact on the accuseds mental state at the time of killing. For example, in the case of Aktar v. State[24], the Court held that the particular situation and past experiences of an accused in relation to the deceased must be taken into account to understand the extent to which the accused was provoked into losing self-control. In many similar cases, the courts held that cumulative provocation has to be given due consideration and that the act of the homicide should not be looked at in isolation. These include the case of Babu Lal v. State[25]. In this case, the accused was found to be entitled to the exception on looking upon the history of the case and not just the homicidal act in isolation. Where there has been sufficient time to cool down, the defence of sudden provocation will not work.[26] English position :-

Under English law, the position on this particular issue has undergone lots of changes. Earlier, it was argued that previous provocative incidents just served as the setting for the triggering incident and did not strictly constitute provocation. On the other hand, recent views expressed seem to argue that previous incidents amounted to relevant provocation along with the triggering incident meaning that the earlier incidents have a cumulative effect on the accused.[27] For example in the case of R v. Duffy[28], the court held that if an incident is farther from the crime, the less its chance of being termed as provocative. The more the time available, the more the time available for the cooling of passions and then the act committed becomes one that is planned and calculated rather than one committed in loss of self-control. This case thus gives a very fine but clear distinction between acts committed as a result of provocation and acts committed with revenge as the motive. It is therefore quite obvious that acts committed with revenge as the motive are not consistent with provocation as an act committed with revenge as the motive suggests that the act has been well planned and well thought over meaning that it was not committed with a loss of self-control which is the essence of provocation. In recent cases, English courts have started accepting the idea of cumulative provocation. In the case of R v. Ahluwalia[29], the court held that the triggering incident cannot be looked at in isolation but needs to be considered in the light of the history of the relationship that existed between the accused and the deceased. Similarly, in the case of Luc Thiet Thuan v. R[30], the court said that even if the homicide was committed to a relatively unprovocative act, if the earlier acts were satisfied the conditions of being reasonably provocative acts, then the homicide committed does not amount to murder. American position :It was held in the case of People v. Berry[31] that cumulative provocation is indeed acceptable and applicable as far as the doctrine of provocation is concerned. It was also held in the case of State v. Ott,[32] that cumulative provocation is acceptable is covered under the mitigating factors. The time for cooling-off depends on the extent to which passions have been aroused and the nature of the act that causes the provocation. No physical set standard can be used for the time for cooling-off and the time for cooling-off has to be different in different cases. Thus, if the reaction of the accused to the provocation is within reasonable limits, then the charge of murder can be brought down to manslaughter.[33] Provocation in the presence of the defendant :Indian position :Indian courts recognize the possibility of provocation even in the absence of the defendant. This sort of provocation is called hearsay provocation under English common law.[34] In the case of Chanan Khan v. Emperor[35], the court was prepared to regard the provocation although it was not in the presence of the accused on the basis that he received the provoking information from a very reliable source and the fact that the act was committed in very close proximity to the accused itself which meant that the act could be verified immediately. Thus, the court held that the provocation in this case was just as much as if the person provoked had seen it happen with his own eyes. In the case of Hansa Singh v. State of Punjab,[36] the court held that the act in this case was indeed of the kind that would cause any reasonable man to lose his self-control and thus the charge of murder was reduced to manslaughter. English position :Under English law, the defendant is required to be present for the act to be considered truly provocative. Provocation that results from word of mouth is termed hearsay provocation as mentioned earlier. In the case of R v. Fisher[37], the court rejected the defence of provocation on the grounds that that the accused himself has not seen the provocative act. Similarly, in the

case of R v. Kelly[38], the accused who killed the deceased on the basis of suspicion that provoked him was not acquitted on the basis that suspicion did not amount to provocation however string it might have been. In the case of R v. Davies[39], the question of whether the provocation can also be possible if it emanates from someone other than the victim. The court held in this case that it is quite possible for this to occur. We also need to consider the possibility of provocation as a result of natural events or general occurrences. For example, if the accused were to strike someone and kill him upon seeing his house burn down, would it be considered enough provocation? Self-induced provocation :Indian position :Exception 1 to section 300 of the Indian Penal Code expressly disallows the defence from succeeding when the accused has sought the provocation. The first proviso to the exception states that :That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. There are actually broad situations in which this can happen :

Where the accused seeks provocation in the sense of making it up with the intention of making an excuse to kill the deceased. Where the accused risks being provoked by any acts of his which he knows might cause the deceased to react in a provocatory manner but which he does not commit with the intention of causing the deceased to react in a provocatory manner.

Under Indian law, the crucial point is that the accused must have sought provocation with the intention of killing or doing harm to any person. The feature of the proviso takes cases of risking the provocation outside its ambit. In the case of State v. Kamalaksha[40], the court held that the exception was applicable because the accused had not sought provocation but only risked it. The same principle was upheld in the case of K. M. Nanavati v. The State of Bombay[41], where the court held that since the accused did not risk provocation nor did he commit his homicidal act purely as a result of that provocative reply of the deceased, the exception does not apply. English position :Under English codified law, Article 46 of the Criminal Law Commissioners Digest of the Law of Offences against the Person states :the plea of provocation is not available where the offender either seeks the provocation as a pretext for killing or doing great bodily harm, or endeavours, to kill or do great bodily harm before provocation is given Similarly Section 176 of the draft Criminal Code 1879 provides as follows : no one shall be deemed to give provocation to anotherby doing anything which the offender incited him to do in order to provide the offender with an excuse for killing or doing bodily harm to any person Both the above sections indicate to us clearly that the English codified law clearly does not allow the defence if provocation for somebody who has sought provocation. Even under English common law, the defence of provocation is not allowed for anyone who has sought the provocation. In the case of R v. Mason,[42] it was opined that any act which

was of the nature that seemed malicious and like a deliberate pretense to kill the deceased was not allowed the defence of provocation. However, there is one exception to this rule. If the accused did not actually seek provocation but elicited it in the course of his interaction with the deceased and as a result of that provocation killed the deceased, then the accused cannot be held guilty of murder. For example, in the case of Edwards v. R,[43] the Privy Council held that such a situation did hold a considerable ground for the defence of provocation. It was held that the accused had not exactly sought for provocation as an excuse to kill the deceased. Another point to be noted in this case is that if it werent for the disproportionate reaction of the deceased, the accused would have been held guilty.[44] It is upon applying the test of predictability that the question of whether a reasonable man would have expected the deceased to react in the manner that he did arises.[45] Similarly in the case of R v. Johnson,[46] the court held that that even if the accused had indeed acted in a manner that was not exactly lawful or socially acceptable, if the reaction of the deceased was disproportionate and greater than expected by a reasonable man, then the defence of provocation can be allowed. Lawful acts as provocation :Indian position :Although the exception to Section 300 of the Indian Penal Code does not have an express provision stating that the provocative conduct must be unlawful, the provisos to the exception do provide that anything lawful cannot be considered provocative conduct. The second proviso to exception 1 provides the following : 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. The illustrations to the section show us clearly what the proviso means :A appears as a witness before Z, a magistrate. Z says that he does not believe a word that A has said and that A has perjured himself. A is moved to sudden passion by these words and kills Z. In this case, the defence of provocation will not apply. Although, in this case, there might be a reference to public servant as in the proviso, it effectively applies to any lawful act as per Section 79 of the Indian Penal Code which states that : nothing is an offence which is done by any person who is justified by law, or who by reason of mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing so Similarly proviso provides as follows :that the provocation is not given by anything done in the lawful exercise of the right of private defence This proviso extends to those who have performed the legal act of private defence in a lawful manner. English position :English common law held that lawful acts could not amount to provocation.[47] However, there could be some exceptions like adultery which was not a crime per se under English criminal law but which could certainly amount to provocation. However, under Section 3 of the Homicide Act, 1957, there is no express restriction against lawful acts but the matter is supposed to be left for the consideration of the jury to decide whether a reasonable man would

have done as the accused did. Added to this acts performed in self-defence are not allowed the defence of provocation.[48]

Reasonable man test

Derived from tort law[49], the reasonable-man standard was first used in a manslaughter case in the United States in 1862 and in England in 1869.[50] The reasonable-man standard soon became an integral part of the provocation defense. As the role of the reasonable man in provocation theory developed and increased in importance, two major objections to the standard arose. The first objection attacked the basic assumption that a reasonable man would kill.[51] The second found the objective standard unjust and urged a more subjective approach that accounted for at least some of the defendants individual characteristics. The first test is The Subjective Test which relates to the defendant him or herself, and asks, was the defendant acting in a provoked manner within the legal meaning of the term. The defendant must show that he or she suffered a sudden and temporary loss of self- control which rendered him or her no longer in control of his or her mind, and consequently unable to control his or her actions. The other test is called The Objective Test which deals extensively with the relation of the defendants behaviour to that of the reasonable man. Not only must the defendant have been provoked, but also the circumstances must be such that the ubiquitous reasonable man would have acted in the same manner under those circumstances. In English common law, the case of R v. Duffy[52] is of great importance in understanding provocation in the first place and also to understand the test of a reasonable man. In this case, the court held that provocation is what can be called An act done by the deceased which would cause loss of self-control in any reasonable man. This case gave us the Subjective Test An interesting decision in English common law is that of the case of Director of Public Prosecutions v. Camplin.[53] The Judge in this case, directed the jury to not consider the age of the accused while taking into consideration. The jury was directed to look at it from the perspective of a reasonable man and not from that of a reasonable boy. The jury could therefore reduce the charge to manslaughter only if the behaviour of the boy was in conformity to that of a reasonable normal man. This test was considered objective in nature. Added to this, the Judge suggested in plain terms talking about the reasonable man that :the reasonable man is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accuseds characteristics as they think would affect the gravity of the provocation to him. . . . It seems rational to take the characteristics of that particular person provoked into consideration. For example, a normal man would obviously not mind if somebody made fun that he cannot see clearly. But, similarly if somebody were to taunt a blind man about the same thing, then it is not tough for us to understand the ramifications of such an insult. In the case of Bedder v. Director of Public Prosecutions,[54] the Court held that no special leniency need be shown for anybody who suffers from any sort of physical deficiency or to anybody with an unusually excitable temperament. Also in the case of Mancini v. Director of Public Prosecutions,[55] the court held that the question of whether the acts of the accused confirmed to that of a reasonable man or not was very important. The court also spoke about the proportionality of the reaction with respect to the weapon that is used. For example, a dagger in reaction to a blow from the hand is not acceptable. Indian position :-

In India, the test of a reasonable man is on the basis of the Nanavati[56] case. In this case, the Supreme Court declared that the test of grave and sudden provocation was whether a reasonable man placed in the situation that the accused was placed in would be so provoked to lose his self-control. From the Nanavati case, we can also infer that the court recognizes the accuseds ethnic, cultural and social background and will consider the same to have a certain amount of bearing on the behaviour of the accused and his loss of self-control. In the case of Mahmood v. State,[57] the presiding judge said the following : there is hardly any point in inquiring whether a reasonable man will kill under a similar provocation, for the simple answer must be that, if he is reasonable, he will not kill under any provocation. A reasonable person ceases to be reasonable when his passions get out control and he kills a human being, and to make the unreasonable conduct of a reasonable man a standard for the conduct of others is a bit of a paradox What this represents for us is a little bit of a paradox as the Judge says himself. A reasonable man cannot really be expected to intend to kill. However, we have to consider the fact that even with the reasonable man, one out of a hundred reasonable men would probably get provoked in a situation like any of these. American position :In the case of People v. Bridgehouse,[58] it was laid down that the heat of passion must be such as would naturally be aroused in the mind of an ordinary, reasonable person, under the given facts and circumstances, or in the mind of a person of ordinary self-control. In the case of People v. Washington,[59] the court held that even if the accused belongs to a specific category[60] of people, still the normal reasonable man test is applicable and no exceptions can be made for him in such a case.

The Rational for Provocation Theory

Killings committed in the heat of passion commonly receive a lesser sentence than killings committed in cold blood. The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness.[61] This balancing act might have been more understandable when all killings carried the penalty of death. Now that homicide is no longer automatically a capital offence, the differential treatment given to provoked and unprovoked killings is not necessary. The concepts of justification and excuse have traditionally been used to explain this differential treatment[62] :

Justification :-

This rationale denies that the defendants actions were entirely wrongful in the first place. Instead, the victims wrongful conduct caused the defendants violent outburst. The defendant was partially justified in reacting as he did because of the untoward conduct of his victim. The harm to society from the intentional killing is reduced by the magnitude of the immoral nature of victims provocative conduct. If killing is an excessive reaction to an otherwise pla usible reason for force, the law splits the difference and reduces the crime from murder to manslaughter. As a retributive matter, he deserves punishment but not as much as an unprovoked killer.

Excuse :-

The concept of excuse provides the second possible rationale for the doctrine of provocation. An excused defendant is not blameworthy, although he committed a harmful and undesired act. Because anger can make people less able to respond in a legally and morally appropriate

fashion, the defendant who responds to a provoking act in the heat of passion is not as blameworthy as a cold-blooded killer Under pure justification and excuse theory, a defendant would be acquitted for his conduct: those who have done nothing wrong (justification) or who are not blameworthy (excuse) do not deserve punishment. Because modern manslaughter statutes do not acquit a defendant, but only mitigate the punishment, commentators have referred to justification and excuse as partial, in contrast to whole, defenses. These theories recognize that defendants deserve some punishment for the intentional killing but not to the same extent as for murder. No matter which theory one uses to rationalize the provocation defense, however, the analysis still focuses on the victims behavior. A defendants reaction is partially justified when the victims behavior is wrongful in light of the prevailing social situation. Likewise, only if the provoking acts would make the ordinary law-abiding person angry will a defendants behavior be partially excused.

Conclusion The doctrine of provocation is obviously one which has gone through a lot of statutory deliberation as well has endless discussion in the courts of India, England and America added to a dozen other countries. The applicability of provocation is very wide in the sense that the attempt can be made regardless of the result but it is very rarely that the act comes within the purview of provocative acts per se. The position of law varies wildly from country to country on the matter of provocation. The Indian position on most of the issues are far ahead of either the English or other systems like the Australian system.[63] In the Indian system, there just have been more things taken into consideration to make the system more practical unlike the English system. For example, under the English system words alone do not amount to provocation whereas the Indian system takes care of that. In conclusion, it can only be said that the concept of provocation as a mitigating factor is of high importance to us because these situations arise very often and to have suitable provisions in our Penal Code is of high importance. Added to this, the Indian Penal Code together with the interpretation of it by the Courts in India give us a clearer picture of the concept of provocation than the English statute and court judgments.