B.D. KHUNTEversusUNION OF INDIA & ORS.

•                     [2014) 11 S.C.R. 447


                          B.D. KHUNTE
                                v.
                                                                  A

                    UNION OF INDIA & ORS.
             (Criminal Appeal No. 242 of 2012 etc.)
                       OCTOBER 30, 2014
                                                                  B
         [T.S. THAKUR, ADARSH KUMAR GOEL AND
                   . R. BANUMATHI, JJ.]

        Raribir Penal Code:

       s.300, Exception 1, and s.302 of RanbirPenal Code and
                                                                  c
  s. 69 of Army Act - Appel/ant-Jawan shot dead his superior
  because of an earlier incident of beating and humiliation -
. Conviction and life sentence affirmed by High Court - The
  beating and humiliation which accused had suffered may
                                                                  0
  have acted as a motive for revenge against deceased who
  had caused such humiliation but that is not what falls in
  Exception 1 to s.300 /PC which is identical to Exception 1 to
  s.300 of Ranbir Penal Code - Conviction and sentence
  upheld.
                                                                  E
        Penal Code, 1860:

        s.300, Exception - 'Sudden provocation' and motive -
    Explained.

        Dismissing the appeals, the Court                         F

         HELD: 1.1. For a case to fall under Exception 1 to
    s.300 IPC, the provocation must not only be grave but
    sudden as well. Grave provocation within the meaning of
    Exception 1 is a provocation where judgment and reason        G
    take leave of the offender and violent passion takes over.
    [para 11 and 14] [456-A; 458-8]

        R. v. Duffy [1949] 1 All E.R. 932 - referred to
                                 447                              H
    448      SUPREME COURT REPORTS            [2014] 11 S.C.R. •


A        1.2. In the instant case, the incident that took place
    around noon cannot be said to be a grave provocation
    that continued to provoke the appellant right through the
    day till 9.30 in the evening when the appellant shot the
    deceased, because the appellant had performed his
8   normal duties during the day time and even in the
    evening he and some of his colleagues appear to have
    settled for and planned a lessor act of retaliation like
    beating up the deceased. Between 14:00 hrs. when the
    appellant was given a grave provocation and 21 :30 hrs.,
C   the time when the appellant shot the deceased there were
    seven hours which period was sufficient for the appellant
    to cool down. A person who is under a grave and sudden
    provocation can regain his cool and composure. Grave
    provocation after all is a momentary loss of one's
    capacity to differentiate between what is right and what
D   is not. So long as that critical moment does not result in
    any damage, the incident lapses into realm of memories
    to fuel the desire to take revenge and thus act as a
    motivation for commission of a crime in future. But any
    such memory of a past event does not qualify as a grave
E   and sudden provocation for mitigating the offence. By
    their nature such provocation even when sudden and
    grave cool off with passage of time, often lapsing into
    what would become a motive for taking revenge
    whenever an opportunity arises. The beating and
F   humiliation which the accused had suffered may have
    acted as a motive for revenge against the deceased who
    had caused such humiliation but that is not what falls in ,
    Exception 1 to s. 300 of the IPC which is identical to
    Exception 1 to s. 300 of the Ranbir Penal Code. [para 13,
G   16 and 18] [958-F, G; 460-C-G; 457-E]         .

          K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605
    - relied on


H
•         B.D. KHUNTE v. UNION OF INDIA


    Mancini v. Director for Public Prosecutor [1941] 3 All
E.R. 272 - referred to.
                                                          449


                                                                  A


                     Case Law Reference:
    [1949] 1 All E.R. 932     referred to           para 15
                                                                  B
    1962 SC 605               relied on             para 17
    [1·941] 3 All E.R. 272    referred to           para 18

    CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 242 of 2012                                                   c
     From the Judgment & Order dated 26.10.2009 of the
Armed Forces Tribunal, Principal Bench, New Delhi in O.A. No.
5 of 2009.

                             WITH                                 D

Crl. A. No. 2328 of 2014.

    Pallav Sisodia, Ranji Thomas, V.N. Raghupathy for the
Appellant.
                                                                  E
    J.S. Attri, Anil Antil, R. Balasubramanian, Santosh Kumar,
B.V. Balaram Das for the Respondents.

    The Judgment of the Court was delivered by

    T.S. THAKUR, J.                                               F

Criminal Appeal No.242 of 2012:

     1. High Court of Delhi has, while dismissing writ petition
No.4652 of 2010 filed by the appellant, affirmed the orders       G
passed by the Armed Forces Tribunal, New Delhi and that
passed by the Summary General Court Martial holding the
appellant guilty for an offence punishable under Section 69 of
the Army Act read with Section 302 of the Ranbir Penal Code
                                                                  H
    450     SUPREME COURT REPORTS                [2014] 11 S.C.R . •


A   and sentencing him to undergo imprisonment for life besides
    dismissal from service.

        2. Enrolled on 3oth July, 2004, the appellant was posted
  at Razdan in Baramulla Sector of the State Jammu and
B Kashmir. Deceased Sub Randhir Singh was serving as a
  Senior JCO/Post Commander at the very same place of
  posting. The prosecution case is that on 28th June, 2.006 at
  about 9.30 p.m. the appellant while on guard duty shot Subedar
  (AIG) Randhir Singh dead with a 5.56 lnsas Rifle issued to him.
  FIR No.137 of 2006 about the incident was lodged by the
C Brigade Commander concerned with the jurisdictional police
  Station at Bandipur who after completing its investigation of the
  incident filed a charge sheet against the appellant before the
  Jurisdictional Magistrate for commitment of the case to the
  Court of Sessions at Baramulla for trial.
D
        3. The Court of Sessions at Baramulla in turn transferred
  the case to the Army Authorities for being dealt with under the
  Army Act on an application filed before it by the GOG 15 Corps.
  A Summary General Court Martial was accordingly convened
E for the trial of the appellant who found the appellant guilty for
  the commission of offences punishable under Section 69 of the
  Army Act and Section 302 of the Ranbir Penal Code and
  sentenced him to undergo imprisonment for life and dismissal
  from service. Statutory remedies under the Army Act, 1950
F having proved ineffective, the appellant filed QA No.5 of 2009
  before the Armed Forces Tribunal, Principal Bench, New Delhi,
  which was heard and dismissed by the Tribunal by its order
  dated 27th August, 2009. The appellant then filed Writ Petition
  No.4652 of 201 O before the High Court of Delhi which too
G failed and was dismissed by a Division Bench of the High Court
  by its order dated 5th July, 2011. The present appeal assails
  the correctness of the judgment passed by the High Court and
  that passed by the Armed Forces Appellate Tribunal. It also
  challenges the conviction of the appellant for the offence of
  murder and the sentence awarded to him by the Summary
H General Court Martial.
•              B.D. KHUNTE v. UNION OF INDIA
                      [T.S. THAKUR, J.]
                                                                  451

         4. Mr. Sisodia, senior counsel appearing for the appellant,
    raised a short point before us. He contended that the appellant
                                                                          A

    was, in the facts and circumstances of the case, entitled to the
    benefit of Exception 1 to Section 300 of the IPC. He argued
    that according to appellant's version he was on 28th June,
    2006 resting in his bunk after lunch when the deceased Sub            B
    Randhir Singh came to the appellant's cot in an inebriated
    state, slapped him mildly twice and asked the appellant to follow
    him. Thinking that he was being called for some kind of duty,
    the appellant followed the deceased to the store room where
    the deceased bolted the door from inside and asked the                C
    appellant to remove his pant suggesting thereby that the
    deceased intended to sodomise the appellant. When the
    appellant declined, the deceased puncl:ted him and kicked him
    repeatedly and asked him to put up his hand and hold the side
    beams of the top berth of the double bunk in the store room.
    The appellant's further case is that the deceased thereafter          D
    made unwelcome and improper advances like kissing his body,
    cheeks and stomach. While this was going on, two other
    personnel viz. Hadgal Vilas and Anil Gadge knocked at the
    door of the store room. The deceased opened the store room
    door and asked them to go away and shut the door again only           E
    to continue the appellant's torture for half an hour. The appellant
    somehow managed to free himself and return to his barrack,
    shaken and crying inconsolably. He is alleged to have shared
    his grief and sorrow about the whole episode with his
    colleagues and immediate superior officers. No formal report          F
    was, however, lodged by the appellant before the superior
    officers, although according to the appellant, the superior
    officers pacified and advised the appellant to remain calm and
    keep his cool. The appellant's further case is that he and his
    colleagues planned to gather near the water heating point in          G
    the evening and beat up the deceased. With that resolve he
    performed his administrative tasks during the day till it was time
    for him to go for night picket guard duty commencing at 2000
    hrs. along with Hadgal Villas carrying his service weapon duly
    loaded as the place where he was posted was an operational            H
A
    452     SUPREME COURT REPORTS                [2014] 11 S.C.R.


  area. The appellant's version is that after taking early dinner
  he reached his place of night guard duty. While on duty he saw
                                                                      •
  someone approaching him. As per the prevailing drill and
  procedure the appellant claims to have challenged the
  approaching person, but the person paid no heed to the
8 warning and continued to approach till the appellant could
  recognise him to be Sub Randhir Singh. Seeing the deceased
  and still seething with anger he opened fire upon him from his
  service weapon. Sub Randhir Singh was hit and dropped dead
  on the spot. The appellant was immediately taken into custody
C handcuffed and tied to the cot in the barrack. Investigation by
  the local police into the incident commenced leading to his trial
  by the Summary General Court Martial in which he was found
  guilty for the murder of Sub Randhir Singh and sentenced as
  mentioned earlier.

D      5. The above factual backdrop, argued Mr. Sisodia, was
  to bring the appellant's case within Exception 1 to Section 300
  of the Indian Penal Code. It was contended that the day time
  incident in the store room had so deeply shaken the appellant
  that he was gravely and suddenly provoked when the appellant
E saw the deceased approaching the picket in the evening. Mr.
  Sisodia argued that although there was a time gap of several
  hours between the attempted commission of an unnatural
  offence upon the appellant and the time when he was gunned
  down by the appellant, yet keeping in view the nature of the
F incident and the effect the same had upon the appellant the
  interval was not of much consequence in the matter of restoring
  the appellant's equilibrium. The appellant was, according to the
  learned Counsel, so deeply disturbed and provoked into a state
  of complete loss of self-control that he had taken the extreme
G step of putting the deceased to death no sooner the latter came
  before him while the appellant was on guard duty armed with
  his service weapon. Mr. Sisodia contended that the question:
  whether an incident was sufficient to result in a provocation so
  grave and sudden as would deprive the person so provoked
H of the power of self-control will have to be decided in the facts
•          B.D. KHUNTE v. UNION OF INDIA
                  [T.S. THAKUR, J.]
and circumstances of each case. He urged that the appellant
being a young jawan seNing in the Indian Army when beaten
                                                             453

                                                                     A

up to make him succumb to a possible sexual assault was
bound to provoke any reasonable person in his position
especially when the provocation came from a superior who
instead of protecting him had tried to take undue advantage of       B
his position. The provocation resulting from the day time store
room incident had continued despite the inteNening time gap
as the appellant had been all the while seething with anger. His
act of firing at the deceased no sooner he saw him must,
therefore, be taken in the context of the attendant facts and        c
circumstances. It was urged that an incident of this nature
taking place in the Army is usually underplayed by the
authorities by either denying the same totally or presenting a
different picture which is neither true nor realistic.

     6. On behalf of the respondents, it was per contra argued       D
by Mr. Attri that while the question of grave and sudden
provocation will have to be seen in the context of each
individual case, the facts of the case at hand did not support
the appellant's plea for invocation of Exception 1 to Section 300
of IPC. He urged that the test laid down by the decisions of this    E
Court to determine whether the deceased had given any
provocation to the accused, whether the provocation was
sudden and whether the same was sufficiently grave so as to
deprive the offender of his self-control were not satisfied in the
case at hand. It was contended that even if the appellant's          F
version about the day time incident was accepted, a Jong
inteNal between the alleged provocation by the deceased and
the murderous assault by the appellant clearly denuded the
provocation of its gravity and spontaneity. A provocation like
the one allegedly given by the deceased at 1 p.m. would have         G
sufficiently cooled down after long hours especially when even
according to the appellant he had attended to other duties in
the inteNening period. The fact that the appellant and his
colleagues had decided that they will in the evening give a
beating to the deceased when they assembled at the water             H
A
    454      SUPREME COURT REPORTS                 [2014] 11 S.C.R.


    heating point also showed that the provocation was far from
                                                                        •
    being sudden and grave enough for the appellant to shoot the
    deceased down when he saw him in the evening.

         7. We must at the threshold point out that there is no
    challenge to the finding that it was the appellant who had shot
8
    the deceased using the weapon and the ammunition issued to
    him. The reason is obvious. Depositions of PWs 4, 5, 7, 8-12
    and 16-18 clearly support the prosecution case that it was the
    appellant who had shot the deceased-Randhir Singh and that
    he was moments after the incident seen standing near the
C   former's dead body with the service rifle in his hand. The
    evidence also proves that the appellant was caught by two
    Jawans on the spot and brought inside the OR Lines and tied
    to the bed using ropes. PW-19 has further deposed that after
    the appellant was tied to the bed the witness slapped the
D   appellant and asked him as to why he shot the deceased to
    which the appellant replied "SAHAB NEY MERE KO
    DUPHMR KO MARA THA, ISLIYE MAINE SAHIB KO MMR
    DIYA" (Sahab had beaten me at noon, therefore, I have killed
    Sahab). The use of the rifle issued to the appellant and the fact
E   that 18 empties recovered from the spot had been fired from
    the said weapon is also established from the evidence of PW-
    18. That 18 bullets fired by the appellant had pierced the body
    of the deceased is also not in dispute. Any argument to
    discredit this overwhelming evidence or dispute the
F   involvement of the appellant in the shooting incident would have
    been specious and futile to say the least. That is perhaps the
    reason why no attempt was made by Mr. Sisodia to argue that
    the incident did not involve the appellant or that he was falsely
    implicated.
G
         8. The only question, as seen earlier, is whether the
    incident that took place around 1400 hrs. in the store room could
    mitigate the offence committed by the appellant. The answer
    to that question would in turn depend upon the nature of the
    incident and whether the same would constitute grave and
H
•          B.D. KHUNTE v. UNION OF INDIA
                  [TS. THAKUR, J.]
                                                             455

sudden provocation for the appellant to have shot the deceased
long after the store room incident had taken place.
                                                                     A


      9. That an incident took place at 1400 hrs. in the store
room cannot be denied. Depositions of PWs. 11 and 13
support the appellant's case that some incident had indeed           8
taken place which had disturbed the appellant for he was found
crying over the same. When asked as to why he was upset and
crying, the appellant had, according to the said two witnesses,
told them that the deceased had beaten him. To the same effect
is the deposition of PW-19, according to whom, the appellant         C
was in the company of the deceased in a room at around 1400
hrs. where the appellant was crying. Later that day when the
appellant met the witness near the water heating point and was
asked as to why he was crying the appellant is said to have
replied "SAHAB NEY MERE KO BAHUT MARA AUR PANT
KHOLNEY KO BATAYA AUR MERE MANA KARNE PAR                            D
MUJHE PHIR PITA" (Sahab beat me up and asked me to open
my pant and on my refusal to do so beat me again).

      10. Suffice it to say that the appellant's version gets
sufficient support from the prosecution witnesses themselves         E
that an incident did take place at 1400 hrs. in the store room
in which the appellant was beaten and humiliated. Trere is,
however, no evidence nor is it the appellant's case that the
deceased had actually sodomised him. Even PW-19 deposed
that the appellant had not complained of having been                 F
sodomised by the deceased. The High Court has also taking
note of this aspect held that while the physical assault on the
appellant had humiliated the appellant, but there was nothing
to show that he was actually sodomised. Whether or not the
deceased had sodomised the appellant is not material. The            G
question is whether an incident had taken place. If so, did the
same constitute grave and sudden provocation? What is
proved by the evidence on record is that the deceased had,
by his conduct, humiliated the appellant to an extent that he felt
deeply disturbed and was seen crying by his colleagues in
                                                                     H
whom he had confided by telling them the cause for his distress.
A
    456     SUPREME COURT REPORTS                 [2014] 11 S.C.R.


       11. What is critical for a case to fall under Exception 1 to
  Section 300 IPC is that the provocation must not only be grave
                                                                       •
  but sudden as well. It is only where the following ingredients of
  Exception 1 are satisfied that an accused can claim mitigation
  of the offence committed by him from murder to culpable
B homicide not amounting to murder:

          (1)   The deceased must have given provocation to the
                accused.

          (2)   The provocation so given must have been grave.
c
          (3)   The provocation given by the deceased must have
                been sudden.

          (4)   The offender by reason of such grave and sudden
                provocation must have been deprived of his power
D
                of self-control; and

          (5)   The offender must have killed the deceased or any
                other person by mistake or accident during the
                continuance of the deprivation of the power of self-
E               control.
        12. Applying the above tests to the case at hand there is
  no gainsaying that an able bodied youthful Jawan when
  physically assaulted by his superior may be In a state of
  provocation. The gravity of such a provocation may be
F heightened if the physical beating was meant to force him to
  submit to unnatural carnal intercourse to satisfy the superior's
  lust. The store room incident involving the appellant and the
  deceased is alleged to have taken place when the deceased
  had bolted the door of the store room to keep out any intruder
G from seeing what was happening inside. By any standard the
  act of a superior to humiliate and force his subordinate in a
  closed room to succumb to the lustful design of the former was
  a potent recipe for anyone placed in the appellant's position
  to revolt and retaliate against the treatment being given to him.
H What may have happened inside the store room if the appellant
•              B.D. KHUNTE v. ' UNION OF INDIA
                      [T.S. THAKUR, J.]
    had indeed revolted and retaliated against the unbecoming
                                                                 457



    conduct of the deceased is a matter of conjecture. The appellant
                                                                         A

    or any one in his position may have retaliated violently to the
    grave peril of his tormentor. The fact of the matter, however, is
    that the appellant appears to have borne the assault without any
    retaliation against the deceased-superior and somehow                B
    managed to escape from the room. The critical moment when
    the appellant could perhaps loose his cool and equilibrium to
    take retaliatory action against the deceased was thus allowed
    to pass uneventfully, grave and sudden provocation for any such
    action notwithstanding.                                              c
         13. All that the evidence proves is that after the said
    incident the appellant was seen ·crying and depressed and
    when asked by his colleagues he is said to have narrated his
    tale of humiliation at the hands of the deceased. There is no
    ev!dence to prove that after the incident aforementioned the         D
    appellant had continued to suffer a prolonged spell of grave
    provocation. By their nature such provocation even when
    sudden and grave cool off with passage of time often lapsing
    into what would become a motive for taking revenge whenever
    an opportunity arises. That appears to have happened in the          E
    present case also for the appellant's version is that he and his
    colleagues had planned to avenge the humiliation by beating
    up the deceased in the evening when they all assemble near
    the water heating point. That apart, the appellant attended to
    his normal duty during the day time and after the evening dinner,    F
    went to perform his guard duty at 2100 hrs. All these
    circumstances do not betray any signs of grave leave alone
    grave and sudden provocation to have continued haunting the
    appellant and disturbing his mental equilibrium or depriving him
    of self control that is an essential attribute of grave and sudden   G
    provocation to qualify as a mitigating factor under Exception 1
    to Section 300 IPC.
         14. It was contended by Mr. Sisodia that although between
    the incident that happened at noon and the shooting of the
    deceased at 2130 hrs. were separated by nearly seven hours           H
A
    458       SUPREME COURT REPORTS                    (2014) 11 S.C.R.


    interval, the nature of the provocation continued to be grave
                                                                              •
    within the meaning of Exception 1 to Section 300 IPC. We find
    it difficult to accept that submission. Grave provocation within
    the meaning of Exception 1 is a provocation where judgment
    and reason take leave of the offender and violent passion takes
s   over. Provocation has been defined by Oxford Dictionary, as
    an action, insult, etc. that is likely to provoke physical retaliation.
    The term grave only adds an element of virulent intensity to what
    is otherwise likely to provoke retaliation.
      15. In Holmes v. Director of public Prosecution 1946
C AC 588: )1946 All E.R. (HL) provocation has been explained
  as under:-

          "The whole doctrine relating to provocation depends on
          the fact that it cause, or may causes, a sudden and
o         temporary loss of self-control, whereby malice, which is
          the formation of an intention to kill or to inflict grievous
          bodily harm, is negatived. Consequently, where the
          provocation inspires an actual intention to kill, or to inflict
          grievous bodily harm, the doctrine that provocation may
E         reduce murder to manslaughter seldom applies."

       16. The argument that the incident that took place around
  noon on that day was a grave provocation that continued to
  provoke the appellant right through the day till 9.30 evening
  when the appellant shot the deceased, does not, therefore,
F appeal to us, not only because the appellant had settled for a ,
  lesser act of retaliation like beating of the deceased in the
  evening by him and his colleagues when they assembled near
  the water heating point, but also because the appellant had
  performed his normal duties during the day time and even in
G the evening except that he and some of his colleagues appear
  to have planned beating up the deceased.

       17. This Court was in K.M. Nanavati v. State of
  Maharashtra AIR 1962 SC 605 dealing with a somewhat
H similar question. In that case the wife of the accused had
•          B.D. KHUNTE v. UNION OF INDIA
                  [T.S. THAKUR, J.]
confessed her illicit intimacy with the deceased when the
deceased was not present. The prosecution case as proved
                                                               459

                                                                      A

at the trial was that after the confession of the wife, the accused
had driven her and the children to a cinema and left them there,
gone to his ship to take a revolver loaded with six rounds and
driven his car to the office of the deceased and then to his flat,    B
gone to his bed room and shot him dead. This Court held that
between 1.30 p.m. when the deceased left his house and 4.20
p.m. when the murder took place there was a gap of three hours
which was sufficient time for him to regain his self control even
if he had not regained it earlier. The following passage from         c
the decision is significant when it deals with the expression
grave within the meaning of Exception 1 to Section 300 IPC:

     "86. Bearing these principles in mind, Jet us look at the
     facts of this case. When Sylvia confessed to her husband
     that she had illicit intimacy with Ahuja, the latter was not D
     present. We will assume that he had momentarily Jost his
     self-control. But, if his version is true - for the purpose
     of this argument we shall accept that what he has said is
     true - it shows that he was only thinking of the future of
     his wife and children and also of asking for an explanation E
     from Ahuja for his conduct. This attitude of the accused
     clearly indicates that he had not only regained his self-
     control, but, on the other hand, was planning for the future.
     Then he drove his wife and children to a cinema, left them
     there, went to his ship, took a revolver on a false pretext, F
     loaded it with six rounds, did some official business there,
     and drove his car to the office of Ahuja and then to his
     flat, went straight to the bedroom of Ahuja and shot him
     dead. Between 1.30 p.m., when he left his house, and
     4.20 p.m., when the murder took place, three hours had G
     elapsed, and therefore there was sufficient time for him
     to regain his self-control, even if he had not regained it
     earlier. On the other hand, his conduct clearly shows that
     the murder was a deliberate and calculated one. Even if
     any conversation took place between the accused and              H
    460      SUPREME COURT REPORTS                  [2014] 11 S.C.R. •


A         the deceased in the manner described by the accused
          - though we do not believe that - it does not affect the
          question, for the accused entered the bedroom of the
          deceased to shoot him. The mere fact that before the
          shooting the accused abused the deceased and the
B         abuse provoked an equally abusive reply could not
          conceivably be a provocation for the murder. We,
          therefore, hold that the facts of the case do not attract the
          provisions of Exception 1 to Section 300 of the Indian
          Penal Code."
c       18. The position in the case at hand is no different.
  Between 1400 hrs. when the appellant was given a grave
  provocation and 2130 hrs., the time when the appellant shot the
  deceased there were seven hours which period was sufficient
  for the appellant to cool down. A person who is under a grave
D and sudden provocation can regain his cool and composure.
  Grave provocation after all is a momentary loss of orie's
  capacity to differentiate between what is right and what is not.
  So long as that critical moment does not result in any damage,
  the incident lapses into realm of memories to fuel his desire to
E take revenge and thus act a s a motivation for the commission
  of a crime in future. But any such memory of a past event does
  not qualify as a grave and sudden provocation for mitigating
  the offence. The beating and humiliation which the accused had
  suffered may have acted as a motive for revenge against the
F deceased who had caused such humiliation but that is not what
  falls in Exception 1 to Section 300 of the IPC which is identical .
  to Exception 1 to Section 300 of the Ranbir Penal Code·
  applicable to the State of Jam mu & Kashmir where the offence
  in question was committed by the appellant. We may, in this
G regard, extract the following passage from Mancini v. Director
  for Public Prosecutor [1941] 3 All E.R. 272 :

          "it is not all provocation that will reduce the crime of
          murder to manslaughter. Provocation to have that result,
          must be such as temporarily deprive the person
H
•          B.D. KHUNTE v. UNION OF INDIA
                  [T.S. THAKUR, J.]
    provoked of the power of self-control as result of which
    he commits the unlawful act which caused death. The test
                                                              461


                                                                      A

    to be applicable is that of the effect of the provocation on
    a reasonable man, as was laid down by the Court of
    Criminal Appeal in Rex v. Lesbini so that an unusually
    excitable or pugnacious individual is not entitled to rely        B
    on provocation which would not have led ordinary person
  ' to act as he did. In applying the test, it is of particular
    importance to (a) consider whether a sufficient interval
    has elapsed since the provocation to allow a reasonable
    man time to cool, and (b) to take into account the                c
    instrument with which .the homicide was effected, for to
    retort, in the heat of passion induced by provocation, by
     a simple blow, is very different thing from making use of
     a deadly instrument like a concealed dagger. In short, the
     mode of resentment must bear a reasonable relationship           0
     to the provocation if the offence is to be reduced to
     manslaughter."

      19. The contention that the day time incident being such
that the appellant could get a grave pr6vocation, the moment
he saw the deceased coming towards the place where he was             E
on guard duty, also has not appealed to us. It is not the case
of the appellant that the deceased had come close to him or
tried to act fresh with him so as to give to the appellant another
provocation that could possibly justify his losing self-control and
using his weapon. The appellant's version that he had called          F
halt as. all Jawans on guard duty are trained to do in operational
areas but when the person approaching him did not stop and
when he recognised the person to be none other than the
deceased shot him, clearly suggests that the deceased was
not in close physical proximity to the appellant. The appellant       G
may have been angry with the deceased for his act of
misdemeanour. But any such anger would only constitute a
motive for taking revenge upon the deceased. It could not be
described as a grave and sudden provocation for which
deceased could have been shot the moment he came in front             H
    462        SUPREME COURT REPORTS                 [2014] 11 S.C.R.


A of the appellant. The deceased, at any rate, could not be
  accused of having given any provocation to the appellant by
  moving towards the place where the appellant was on guard
  duty for the deceased was well within the sphere of his duty to
  keep an eye on those who were performing the guard duty. The
B very act of appearance of the deceased near the pickeVpost
  where the appellant was on duty could not, therefore, constitute
  a provocation within the meaning of Exception 1 to Section 300
  IPC.

           20. In the result this appeal fails and is hereby dismissed.
c
           Criminal Appeal No.2328 OF 2014

           (@ Special Leave Petition (Cr/.) No. 8457 of 2014 Cr/
    M.P.
D           No.1545512014)

           Delay condoned

           Leave granted.
E        In view of our order of even date passed in Criminal .Appeal
    No.242 of 2012, this appeal, filed by the appellant-B.D. Khunte,
    also fails and is, hereby, dismissed.

    Rajendra Prasad                                  Appeals dismissed.