By: Hritik Merchant

(This article is a Part I of the submission.)                                                                                            

I. Introduction

Exception 4 to Section 300 of the Indian Penal Code, 1860 (“IPC”) posits that if a person dies in a sudden fight with the accused, the accused’s culpability will be reduced to culpable homicide not amounting to murder (“the sudden fight exception”). It is a partial defence operating as a mitigating factor and does not wholly exonerate the offender.

On one hand, there is great scholarly dissent in how the Indian courts have applied this exception. On the other, there is a running debate whether this exception should be retained in the first place.[1] The advocates for the retention of this exception primarily assert that a person who kills in a sudden fight is less morally culpable than a cold-blooded murderer. There is a rough moral calculus aimed at partially excusing the killer because there was a “heat of passion” for which the deceased is somewhat to be also blamed.[2] However, the exception has been met with opposition arguments that it contravenes the deterrent theory of punishment.

The enigma surrounding this exception is compounded by the fact that it was a late and unexplained addition to the IPC. The principal drafter of the IPC, Lord Macauley, excluded it in his draft of the Penal Code. Macauley allegedly opined that the same was unnecessary since there were already partial defences of provocation, excessive defence, and consent to death. Further, the sudden fight exception is not even supplemented with any illustrations.

In this piece, I explore this debate of whether the sudden fight exception is anathema to criminal law. I argue that the exception of sudden fight is inherently and conceptually flawed. It should be eliminated from section 300 of the IPC. In Part II of the piece, I attempt to place this exception in the IPC and contrast it with the other exceptions. In Part III, I present arguments from both sides of the debate of whether this exception should exist or not. Since the sudden fight exception is adopted verbatim in the Malaysian and Singapore Penal Codes, I underpin my submissions with developments in the Malaysian and Singapore jurisprudence on this exception.

II. Placing the ‘Sudden Fight’ exception in the Indian Penal Code

The sudden fight exception is a mitigating factor in the mens rea component of the offence of homicide. The actus reus in this exception is the same as the actus reus in culpable homicide amounting to murder.

At the outset, it is imperative to look at the exception to understand whom it seeks to protect.

Exception 4Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.”

ExplanationIt is immaterial in such cases which party offers the provocation or commits the first assault.”

(emphasis supplied by the author)

The sudden fight exception can be applied when deaths occur in unpremeditated sudden fights. Both parties are placed on an equal footing, similar to a fair battle between fighters. and this exception excludes one-sided attacks. As the explanation to the exception elucidates, it is wholly immaterial who started the fight or who provoked whom. The blame cannot be wholly put on one side.

At this juncture, it is vital to juxtapose and contrast the sudden fight exception with other partial and complete defences under the IPC. The sudden fight exception will now be compared to the exceptions of sudden and grave provocation (partial defence), right to private defence (complete defence) and exceeding the right to private defence (partial defence). At the outset, it is imperative to distinguish between partial and complete defences. The partial defences under section 300 are special exceptions to murder only, while the complete defences like private defence and insanity are general exceptions applied to all offences. Partial defences only reduce the criminal liability and operate as mitigation factors while complete defences exonerate the accused. I attempt to place the sudden fight exception on a rough scale of different exceptions to understand whether it should be there or not.

Exception 1 to Section 300 of the IPC partially excuses the accused’s culpability if the accused acted on a sudden and grave provocation by the deceased.  The sudden and grave provocation led to a total loss of self-control. In a sudden fight, there is a heat of passion that eclipses the offender’s sober reason. This “eclipse of sober reason” is a much lower threshold than the “total loss of self-control”. The provocation by the victim in Exception 1 cannot be in turn provoked by the accused. The provocation is immaterial in Exception 4.

By virtue of section 100 of the IPC, a person, while exercising their right to private defence, can cause the assailant’s death. This exception fully exonerates the accused. In private defence, the determination of the initial aggressor is essential and the accused’ act must be a necessary response to the same. The requirement of necessity does not exist in sudden fight. The accused must simply not have taken an undue advantage during the fight. Moreover, under private defence, the accused should have sought help from public authorities, if possible. The sudden fight exception can be availed even if the accused knows that they can avoid the fight by seeking the intervention of a public official within reach.

Exception 2 to Section 300 of the IPC stipulates that culpable homicide is not murder if the accused had exceeded their right to private defence. There is a critical distinction between Exceptions 2 and 4. When private defence is exceeded, the accused honestly believed that excessive and disproportionate force was necessary for the survival of the accused. There can be disproportionate responses to some level in a sudden fight as long as it does not constitute  “undue advantage”. Undue advantage means unfair advantage taken by the accused during the fight. For instance, beginning the fight with a revolver in the hand would amount to undue advantage.  In sudden fights, generally, things are escalated by both parties that eventually cause the death, so both are acting disproportionately. The disproportionate responses occur in the “heat of passion”.

In a quest to better understand this exception, consider the following hypothetical: Jupiter is a 30-year-old man accused of the murder of Pluto. After a verbal quarrel over a trivial matter, Jupiter pushes Pluto. Pluto parries the blow and replies with another punch. A physical fight ensues. Jupiter drops down due to the blows struck by Pluto. He picks up a sharp weapon and stabs Pluto. Jupiter pleads the defence of sudden fight. Let us see what Jupiter has and has not done. Jupiter did not have an undue advantage at the beginning of the fight and used the weapon in the heat of passion. Here, heat of passion means that there was no time for him cool down[3] and think reasonably. He has not entirely lost his self-control and he still is aware of his surroundings and the situation at hand. Given that he stabbed only once, he has not acted cruelly. He did not seek help from any public official, neither did he look around for them in the first place. He did not stab Pluto for defensive purposes. He knew that stabbing Pluto is not proportionate to the Pluto’s punch, nor did he believe it was necessary for survival. So, should Jupiter’s culpability be restricted to culpable homicide not amounting to murder, on a normative scale? In the following section, I answer this question in the negative.

                                                                                                                            III.  Analysing the debate

In this section, I explore arguments of both sides of the debate of whether this exception should exist or not. First, I argue that this exception is antagonistic to the deterrent theory of criminal law and public policy. Second, I build upon Prof. Simester and Prof. Sullivan’s argument that such an exception indirectly benefits one gender. Third, I present arguments by the proponents of this exception. Fourth, I contrast the two sides and argue why the exception should be eliminated.

1.   Deterrent Theory of Criminal Law

At the core of the sudden fight exception lies an angry loss of self-control. The loss of self-control is coterminous with “heat of passion”. The loss of control is not a complete one, like the one in sudden and grave provocation.

One of the deterrent tasks of criminal law is to provide citizens to bridle violent responses by their angry states. Anger, in itself, is a criminogenic emotion.[4] A balance has to be struck between what kind of mental states we want to excuse and where we draw the line on anger. A paradigm of sudden fight exception goes against this very purpose. In my opinion, partially excusing anger should be limited to sudden and grave provocation. This is because of three reasons.

First, there is a total loss of self-control in a sudden and grave provocation. In a sudden fight, there is just “clouding of man’s sober reasoning”. The accused is still aware of what they are doing. The lower touchstone in this regard gives considerable leeway to a person to act out their anger.

Secondly, there is no unilateral provocation in sudden fight and can be traced to both parties. In our aforementioned hypothetical, Jupiter was the person to push first, after which both Jupiter and Pluto escalated things. In a sudden and grave provocation, the provocation has to be from the victim, and the accused cannot bait the victim to provoke them. It is vital to bring in here the defence of involuntary intoxication under sections 85 and 86 of the IPC. Under Section 86, a person who has been intoxicated by their own will, cannot take the defence of lack of knowledge component in offences. This is because the law recognises that where the accused is at fault for the mental state they are in, their liability cannot be discharged simply because they were in that mental state while committing the offence. In this regard, Prof. Stanley Yeo cites the common law principle that an accused, who voluntarily affects their rational action, is blameworthy for consequent actions.[5]

Third, there has to be a sudden and grave provocation under Exception 1. The threshold for “graveness” of the provocation has been crucial in the courts’ determination of whether the exception can be taken. Under Exception 4, the cause of the fight is generally immaterial. Jurisprudence around the world has highlighted that this exception has been invoked when fights resulted from the most trivial of quarrels. For instance, in Rambir Singh vs State of NCT of New Delhi, the husband (accused) killed his wife over a fight after his wife took some money from his wallet. In Mohammad Yassin bin Jappar v PP, the accused killed the victim in a fight over a table tennis match. All these showcase the utter disregard for the sanctity of human life and how human life is at the mercy of persons disposed to retaliatory violence. Thus, having a sudden fight exception is essentially protecting  unreasonable fits of anger and runs contrary to the deterrence theory.

The deterrence theory of punishment is predicated on the proposition that adequate state-imposed sanction costs discourage criminal activity. The severity of the punishment is at the helm of this theory. Thus, the punishment for Jupiter, who started the fight over a trivial matter and killed Pluto in a mental state when his judgment was clouded, should be the same as an ordinary murderer.

2.      The Inbuilt gender bias in the exception

The defence of sudden fight owes its existence to the common law defence of chance-medley. While discussing the partial defences of provocation and chance medley, Prof. Simester and Prof. Sullivan contend that the partial defences come with an inbuilt gender bias.

the partial condonation of angry violence through provocation defences comes with an inbuilt gender bias because it clearly privileges persons with an effective capacity and disposition to spontaneously to kill others[6]

At that time as well, these theorists were critical that in many cases, the defences were invoked in domestic scenarios. A historical study of the defence highlights that the continuance of the defence was reinforced by an acceptance that “male honour” can and, in fact, should be vindicated by the conduct of retaliatory violence.[7]

In fact, in India, this proposition has manifested in the aforementioned case of Rambir Singh and Golla Yelugu Govindu v. State of Andhra Pradesh. In the former, the quarrel was because the wife took some money out of the husband’s wallet. In the latter, the quarrel started when the wife did not get money from her parents for the husband to buy an autorickshaw. In both cases, the husband, after a verbal quarrel, used sharp weapons (saria in Rambir Singh and sickle in Golla Yelugu). Unfortunately, in both cases, the court overlooked whether the wife had responded with any violence. Nevertheless, the most crucial running thread is that the court egregiously mostly enquired whether there was an “un-premeditated sudden fight”. In the courts’ opinion, these instances fell squarely within the definition of sudden fight and the benefit of the defence was granted. The court chose to be oblivious to the power dynamics in domestic households, which is a persisting problem of this exception.

This exception is also predicated on the idea of protecting male honour. A man losing his temperament in a trivial fight with his wife to protect his honour is wholly justified in the eyes of the law. Whether the fight was necessary, how it unfolds, and what precedent it sets are ugly truths that the court conveniently chooses to ignore.

3.   The principle of comparative responsibility and defending sudden fight

The proponents for the retention of this exception make a two-fold argument: first, people who kill others in a sudden fight in the heat of passion are morally less culpable than people who coolly plan and carry out a murder; second, the homicidal victim is to be partly blamed for their death and consequently, the killer is morally less culpable.

The first argument is premised on the recognition of human frailty in the course of sudden quarrels. Mitigating punishment on mutual violence is a manifestation of the Renaissance-inspired ethos of martial virtue and honour. Moreover, the existing punishment system was one of the key reasons for having this exception. The exception reduced the sentence of life imprisonment to few years.

The lack of premeditation in sudden fight is not sufficient in itself to justify the retention. The brutal malignity to kill can be spontaneous. There should be no distinction if the intention to kill were formed just a minute, a day, or a year before the actual death. A person can form the intention to kill at any time. Even Macauley observed that this lack of premeditation is not enough and there should be some element of “victim asking for it”.[8] Otherwise, in events where the accused got provoked by a baby’s crying or provocation from someone else would justify a partial defence.

The second prong of the argument is sourced in the principle of conditionality of rights. According to this principle, a perpetrator’s criminal liability should be reduced to the extent that the victim, by their own actions diminished their right to be not harmed by the perpetrator. In the IPC, this principle concretised in  Exception 5 to section 300 in the context of homicide. Pursuant to exception 5, culpable homicide is not murder if the victim themselves consented to it. It can be rationalised that having Exception 5 was the reason why Macauley did not include a separate section for sudden fight. The consent in Exception 5, however, cannot be merely implied and has to be explicit. In cases of homicide, sourcing implied consent is speculative at the least and there is also the problem of credibility. In cases of murder, a partial defence of implied consent will only incentivise the offender to perjure. Thus, implied consent in itself is insufficient to justify the partial defence of sudden fight. Proponents argue that in a sudden fight, both the accused and deceased are equally wrong, and in some way, the deceased gives up their right to be not harmed. Thus, a homicide is partially excusable.

4.   Who wins the debate?

The argument on mitigating punishment because the victim is at fault is a reasonable one. It would very well justify the existence of Exceptions 1 (sudden and grave provocation) and 5 (victim’s consent). However, it wilts when applied to the  sudden fight exception. This is because of the essential differences between  sudden and grave provocation and sudden fight. In sudden fight, the victim’s involvement in the fight is essentially a direct consequence of the perpetrator’s actions.

In fact, Prof. Leader-Elliot proposed a proviso:

the partial defence is barred when the victim’s response is provoked by the offender as an excuse for killing, or doing harm to any person

However, proving the events as “excuse for killing” is a slippery slope and difficult to prove in an intense fight. Given that there is no traceable unilateral provocation, this proviso will rarely come into the picture. In our aforementioned hypothetical, if Jupiter wants to kill Pluto irrespective of the sudden fight, he can provoke Pluto by pushing him amid a verbal quarrel. Pluto would respond to the push with his own punch. Jupiter will walk into the court and argue that the push was done in the “heat of passion” and not meant as a provocation. This problem will always persist and beclouds the events. The biggest issue with sudden fight is that it partially absolves a person who was partly why they were provoked and the consequent homicide occurred.

Concomitantly, the lower threshold of “clouding one’s judgement” for sudden fight does not help either. As our jurisprudence time and again substantiated, this defence can be invoked when even a quarrel was unnecessary, much lesser than a full-fledged fight. The public policy implications of a sudden fight exception substantially outweigh any considerations of the victim’s own fault and going easy on a person acting out their anger.

                                                                                                                                  IV.   Conclusion

The sudden fight exception is an outlier in the IPC. We have to move beyond the rhetoric that a person killing in the heat of passion is less reproachable than a cold-blooded murderer. On examining the exception’s foundational dockets more closely, we come across a different picture.

The arguments made for  ‘sudden and grave provocation’ and ‘sudden fight’ exceptions are often shared. However, understanding the essential differences between the two is quintessential to our inference that the arguments advanced justify only the former.

The sudden fight exception has an overarching effect and is contrary to the criminal theory. Given that the accused is in a mental state that clouds their sober judgment for which they themselves are partly to blame over a fight that could be trivial and unnecessary, the moral compass of the accused is the same as a murderer. While an argument on the victim’s own fault can be made, it still does not take away that the victim’s fault was partly induced by the accused. A paradigm of sudden fight exceptions will foster people acting out their anger disproportionately and keep human life at risk. In domestic contexts, the sudden fight exception has been abused by husbands who kill their wives for the smallest things.

The sudden fight exception does not partially excuse a killer, but it becomes an excuse for the killer to kill. It should be repealed from the IPC.

(Hrithik Merchant, a third year student at the National Law School of India University, Bangalore.)

[1] AP Simester, JR Spencer, Findlay Stark, GR Sullivan and GJ Virgo, Simster and Sullivan’s Criminal Law (6th edn, Hart Publishing 2016).

[2] Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (2nd edn, Lexis Nexis 2012) para 30.53.

[3] P PSA Pillai, Criminal Law (14th edn, Lexis Nexis 2019) ch 33.12.

[4] Simester and Sullivan (n 1) 395.

[5] Molly Cheang, Criminal Law of Malaysia and Singapore Principles of Liability (Professional Law Books 1990) 161.

[6] Simester and Sullivan (n 1) 395.

[7] Ibid.

[8] ibid.

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