Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 242 OF 2012

B.D. Khunte …Appellant

Versus

Union of India & Ors. …Respondents

WITH

CRIMINAL APPEAL NO.2328 OF 2014

(@ Special Leave Petition (Crl.) No.8457 of 2014

Crl. M.P. No.15455 of 2014)

J U D G M E N T

T.S. THAKUR, J.

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

passed by the Armed Forces Tribunal, New Delhi and that

passed by the Summary General Court Martial holding the

1

Page 2 appellant guilty for an offence punishable under Section 69

of the Army Act read with Section 302 of the Ranbir Penal

Code and sentencing him to undergo imprisonment for life

besides dismissal from service.

2.Enrolled on 30

th

July, 2004, the appellant was posted at

Razdan in Baramulla Sector of the State Jammu and 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 28

th

June, 2006 at about 9.30

p.m. the appellant while on guard duty shot Subedar (AIG)

Randhir Singh dead with a 5.56 Insas Rifle issued to him. FIR

No.137 of 2006 about the incident was lodged by the

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.

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 GOC 15

Corps. A Summary General Court Martial was accordingly

2

Page 3 convened 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 having proved

ineffective, the appellant filed OA 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

27

th

August, 2009. The appellant then filed Writ Petition

No.4652 of 2010 before the High Court of Delhi which too

failed and was dismissed by a Division Bench of the High

Court by its order dated 5

th

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 General Court Martial.

4.Mr. Sisodia, senior counsel appearing for the appellant,

raised a short point before us. He contended that the

appellant was, in the facts and circumstances of the case,

3

Page 4 entitled to the benefit of Exception 1 to Section 300 of the

IPC. He argued that according to appellant’s version he was

on 28

th

June, 2006 resting in his bunk after lunch when the

deceased Sub 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 appellant to remove his pant

suggesting thereby that the deceased intended to sodomise

the appellant. When the appellant declined, the deceased

punched 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 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 to continue

the appellant’s torture for half an hour. The appellant

4

Page 5 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

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 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 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 warning and continued to

approach till the appellant could recognise him to be Sub

5

Page 6 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

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.

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 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 incident and the effect the

same had upon the appellant the interval was not of much

6

Page 7 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

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 of the power of self-control will have to

be decided in the facts and circumstances of each case. He

urged that the appellant being a young jawan serving in the

Indian Army when beaten 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 his position. The

provocation resulting from the day time store room incident

had continued despite the intervening 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,

7

Page 8 therefore, be taken in the context of the attendant facts and

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

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 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 version about the day time incident was

accepted, a long interval 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

8

Page 9 the deceased at 1 p.m. would have sufficiently cooled down

after long hours especially when even according to the

appellant he had attended to other duties in the intervening

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 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 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 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

9

Page 10 witness slapped the appellant and asked him as to why he

shot the deceased to which the appellant replied “SAHAB

NEY MERE KO DUPHAAR KO MARA THA, ISLIYE MAINE SAHIB

KO MAAR DIYA” (Sahab had beaten me at noon, therefore, I

have killed Sahab). The use of the rifle issued to the

appellant and the fact 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 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.

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 sudden provocation for the appellant to

10

Page 11 have shot the deceased long after the store room incident

had taken place.

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

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 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 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

11

Page 12 themselves that an incident did take place at 1400 hrs. in

the store room in which the appellant was beaten and

humiliated. There 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 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 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

whom he had confided by telling them the cause for his

distress.

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

12

Page 13 ingredients of Exception 1 are satisfied that an accused can

claim mitigation of the offence committed by him from

murder to culpable homicide not amounting to murder:

(1)The deceased must have given provocation to the

accused.

(2)The provocation so given must have been grave.

(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 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-

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

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 from seeing what was happening

13

Page 14 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. What may have

happened inside the store room if the appellant had indeed

revolted and retaliated against the unbecoming conduct of

the deceased is a matter of conjecture. The appellant 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

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.

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

14

Page 15 evidence to prove that after the incident aforementioned the

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 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, 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 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

15

Page 16 deceased at 2130 hrs. were separated by nearly seven hours

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 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 Homes v. Director of Public Prosecutions 1946

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 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 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

16

Page 17 provoke the appellant right through the day till 9.30 evening

when the appellant shot the deceased, does not, therefore,

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 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

similar question. In that case the wife of the accused had

confessed her illicit intimacy with the deceased when the

deceased was not present. The prosecution case as proved

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, 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

17

Page 18 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 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, let 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 present. We will assume that he had

momentarily lost 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 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, 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

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 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 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.”

18

Page 19 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 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 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 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 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 Jammu & Kashmir where the

19

Page 20 offence in question was committed by the appellant. We

may, in this 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 provoked of the power of self-control as

result of which he commits the unlawful act which

caused death. The test 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 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 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 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 provocation, the

moment he saw the deceased coming towards the place

where he was 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

20

Page 21 appellant another provocation that could possibly justify his

losing self-control and using his weapon. The appellant's

version that he had called 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 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 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

very act of appearance of the deceased near the picket/post

where the appellant was on duty could not, therefore,

21

Page 22 constitute a provocation within the meaning of Exception 1

to Section 300 IPC.

20.In the result this appeal fails and is hereby dismissed.

Criminal Appeal No.2328 OF 2014

(@ Special Leave Petition (Crl.) No. 8457 of 2014 Crl M.P.

No.15455/2014)

Delay condoned

Leave granted.

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.

………………………………….…..…J.

(T.S. THAKUR)

………………………………….…..…J.

(ADARSH KUMAR GOEL)

………………………… ..……………..J.

New Delhi, (R. BANUMATHI)

October 30, 2014

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