CRIMINAL APPEAL NO. 242 OF 2012 B.D. Khunte …Appellant Versus Union of India & Ors. …Respondents

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

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 30th 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 28th 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 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 27th 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 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 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, 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 R. v. Duffy [1949] 1 All E.R. 932 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 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 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. 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
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 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, 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