Defence of Grave and Sudden provocation in Murder cases

The defence of crimes of passion challenges mens rea, suggesting that there was no premeditated malice and that the crime was committed as a result of the heat of passion. In certain jurisdictions, if the defence of grave and sudden provocation is established, it might call for a conviction for second-degree murder but not first-degree murder, as the crime was not aforethought. In the United States, cases of crimes of passion have been equated with the defences of temporary insanity or provocation.

In England, provocation is used as a mitigating factor for murder to reduce the offence to voluntary manslaughter. In order to successfully establish this defence, the judges should be satisfied that the accused was deprived of his self-control at the time of committing the crime and that this was the result of any conduct serious enough to instigate an ordinary and reasonable person.

The provocation defence depends on two interrelated elements namely, the wrongful conduct of provocation and loss of self-control. The first element is considered to be justificatory in nature, which has the nucleus to determine the capability of affecting the wrongfulness of the conduct independent of the accused’s state of mind. The second element emphasises on the accused’s state of mind and his inability to exercise control over his actions, which is excusable. Since provocation rests upon both excusable and justificatory factors, the rationale of the legal defence has been quite a task to identify .

Defence of Grave and Sudden provocation in Murder cases

Provocation as a concession to human infirmity or weakness forms the genesis of this defence as an excuse. The governing presumption is that, when an igniting act is sufficiently serious, it has the potential to infuriate someone to such an extent that the person provoked thereby loses his self-control and retaliates in violence. When the provoked person gets his volition impaired, he becomes incapable of weighing the consequences of his action with respect to reason. It does not imply that the provoked person lacks the ability to reason.

 As Jeremy Horder explains:

“Actions stemming from a loss of self-control are the product of judgment (of a certain degree of wrongdoing) and a desire following in the wake of the judgment that controls the will without, for the moment, the restraining or guiding influence of reason.”

Although taking away a person’s life in provocation is not totally excusable, the person’s degree of guilt or culpability falls short of that which is required to convict him of murder. In accordance with the excuse theory, the gravity and quantum of the provocation are relevant to the accused’s claim that he was provoked to lose his self-control. There is no question as to, whether the culpable nature of the provocative act should be partially justified or be seen as less wrongful. The onus is rather on the person who performs, for losing his self-control after being incited, and therefore it mitigates his culpability.

Defence of Grave and Sudden provocation in Murder cases

 It is not essential that the person loses his self-control to the degree that he becomes incapable of knowing what he is doing, or what his action would result in, but the control over his body and mind must be lost to such an extent that for the moment his action is persuaded by “passion rather than by reason”.

In the framework of the excusable theory, the role of losing one’s self-control can be understood in light of the critical distinction between involuntariness and moral involuntariness. The word ‘involuntariness’ is used to indicate one’s complete incompetency to administer his conduct or to exercise control over his bodily movements. In cases as such, the agent or instigator acts only in appearance as the conduct is no longer contingent on the conscious determination by the agent. On the other hand, moral or otherwise known as normative involuntariness is concerned about those cases where the agent, although is able to manage the wrongful conduct, fails to perform as he chooses, otherwise would have chosen due to internal or external constraints.

The common law jurisdictions have laid down certain principles which combine the subjective and objective elements in the context of the theory of heat of passion:

  • The defendant must have been in the heat of passion.
  • A reasonable person would also have been in the heat of passion.
  • The defendant must not have cooled down.
  • A reasonable person would not have cooled down.

 A well-established principle in law is that every act or conduct which is excused by citing the defence of grave and sudden provocation is not to be considered as a mitigating factor. The substantive provisions of the Indian Penal Code like sections 153, 334, 335, 352, 355, 358 define the particular circumstances as to when the plea of the grave and sudden provocation can be invoked.

Defence of Grave and Sudden provocation in Murder cases

In the landmark judgement of K.M.Nanavati v. State of Maharashtra, his Lordships made the following observation:

“The test of a grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused placed in the situation in which the accused was placed would be so provoked as to lose his self-control.

In India, words and gestures may also under certain circumstances cause grave and sudden provocation to an accused so as to bring his act within the first exception to Section 300 of Indian Penal Code.”

Crimes of passion during the heat of the moment have recourse to extreme emotions which are sometimes too much for the reasonable and rational mind to take. If someone who is more emotionally influenced than the reasonable or standard individual is confronted with a situation that is very huge or immense for the mind to overcome, at times the areas of the brain that provide logic and reason shut down to cope up with the situation. These are the moments of temporary insanity where the person tries to get rid of the situation without resorting to reason. While not everyone is necessarily able to overcome these inflamed circumstances, some are affected so powerfully that they commit terrible acts, which call for serious repercussions.


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