B.D.KHUNTE Vs UNION OF INDIA .
Bench: T.S. THAKUR,ADARSH KUMAR GOEL,R. BANUMATHI
Case number: Crl.A. No.-000242-000242 / 2012
Diary number: 32403 / 2011
Advocates: V. N. RAGHUPATHY Vs
ANIL KATIYAR
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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:
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“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 re- volver 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. Be- tween 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 re- gained 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 man- ner 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 conceiv- ably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the pro- visions 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
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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 :
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“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
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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.
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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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