Francis Alias Ponnan Vs. State of
Kerala [1974] INSC 122 (17 May 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION: 1974 AIR 2281 1975 SCR (1) 485 1975
SCC (3) 825
ACT:
Penal Code--S.
300---Murder--Sentence--Grounds for reducing.
HEADNOTE:
It is not possible for courts to attempt to
explore the murky depths of a warped and twisted mind so as to discover whether
an offender is capable of reformation or redemption, and, if so, in what way.
This is a subject on which only experts in that line after a thorough study of
an individual's case history, could hazard an opinion with any degree of
confidence. Judicial psychotherapy has its obvious and inherent limitations.
The mere possession of a warped or twisted mind which many a criminal has,
could not either absolve him from criminal liability or mitigate his crime.
Courts are generally concerned only with the nature and extent of punishment
once the accused's guilt is established. In considering the question of
appropriate sentence to be awarded, while the common fragilities and failings
of ordinary human beings. to which the offender gives vent, may, without
affecting the criminality of the acts punished, be enough to show that a lesser
sentence will meet the ends of justice, abnormal twists of the mind or
indications of an obdurate and unrelenting viciousness of mind and conduct of
the offender may show the need for a severer sentence. [491D-F] The murdered
man had attacked the brother of the appellant in Crl. A. 133 of 1973. Later he
had attacked the brotherin-law of the appellant. who was so badly injured that
he had to remain in hospital for some days. On the day following the day of
attack of his brother-in-law, the appellant had attacked the murdered man in
broad daylight.
Several witnesses spoke of the determined
manner in which the appellant had told them that he had made up his mind to
kill the deceased. The appellant hid himself in a compound waiting for the
deceased and when the deceased was going on his bicycle, the appellant chased
him and attacked and killed him with a chopper.
The High Court convicted and sentenced him to
death.
The appellant in, Cr. A. 46 of 1974 was tried
jointly for three murders committed at different times and places close to each
other. in all the three cases the victims were beguiled by the appellant on one
pretext or another to accompany him on a journey and the victims did not return
after that. The appellant was convicted and sentenced to death.
On the question of sentence,
HELD : (1) The provocation contemplated by
law must be grave as well as sudden so as to deprive the individual of the
power of self-control before the first exception to section 300 could apply. In
deciding whether the case merits a less severe of the two penalties prescribed
for murder the history of relations between the parties concerned, the
background, the context or the factual setting of the crime.
and the strength and nature of the motives
operating on the mind of the offender are relevant considerations. The state of
feelings and mind produced by these, while insufficient to bring in the
exception. may suffice to make the less severe sentence more appropriate.
[489D-E] In the instant case the motives of the appellant, who in his obviously
frenzied state of mind, decided to do away with someone who appeared to him to
be a standing menace to the lives and limbs of his near and dear ones could not
be said to be reprehensible. Nor could his inflamed feelings be less worthy of
consideration in pronouncing upon the question of sentence. [489F-G] It is not
enough for deciding such a question to find that facts of the case indicated
deliberation or premeditation before the offence, although this is quite 486
important. Even the period of time which had elapsed between the two incidents
was not so lengthy as to enable the court to say that the effect of provocation
given by the previous night's occurrence, in the background of another similar
occurrence, and the feelings of fear or alarm which must have engendered, so as
to disturb the mind of a person in the position of the appellant, must have
evaporated before the murder was committed. These may have become even
intensified by brooding over or talking and thinking about the incidents.
Although the previous incidents could not constitute sufficient provocation to
reduce the crime of murder to one of culpable homicide not amounting to murder,
yet, the context of the crime justified the imposition of a lesser penalty than
that given in this case. [489G; 490A-C] Jagmohan Singh v. State of U.P. [1973]
1 S.C.C. 20 referred to.
Ediga Anama v. State of Andhra Pradesh',
[1974] 3 S.C.R. 329 followed.
(2) In the case of the appellant in Cr. A. 46
of 1974 no fact was proved as could so disturb or unhinge the mind of an
average individual as to impel him towards murder. It is apparent, from the way
in which the appellant committed gruesome murders, the relationships of those
he murdered, the absence of any intelligible reasons for which he could have
murdered them, and the casual manner in which he used to dispose of the bodies
that he had no respect whatsoever for the sanctity of human life. He apparently
murdered for the sheer pleasure which killing those he disliked for some reason
seemed to give him. Furthermore there is no evidence Lo Suggest that the
appellant suffered from insanity or mental ill-health of a kind which
incapacitated him from understanding the nature of the acts committed by him or
that they were wrong. Evidence in the case indicates that he knew very well
what he was doing and that this was wrong.
[490H; 491A-C] If, however, proved facts
disclose that something even falling short of either legal insanity, satisfying
the tests laid down in M' naghten rules, which is receiving increasing
jurisprudential recognition for absolving its victim from criminal 'liability,
or grave and sudden provocation. which Will reduce a culpable homicide from
murder to one which is not murder. is present in the case so as to only disturb
the normal balance of an individual's mind what is proved may be sufficient to
avert death penalty. While mitigating circumstances were shown to exist in the
first case the circumstances revealed in the second were of an aggravating
kind. There is a vast difference between the two cases-the difference between
the case of a scared human being, with a weak control over his feelings,
carried away by what was too strong and long-lasting a gust of passion against
another who had given him genuine cause for anger, and that of a person whose
conduct in carrying out cold blooded and calculated murders of several
relatives disclose nothing short of a fiendish callousness and cruelty.
[491G-H; 492AB]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 133 of 1973.
Appeal by special leave from the judgment and
order dated the 4th January, 1973 of the Kerala High Court in Crl. A.No. 348 of
1972 and Referred Trial No. 18 of 1972.
Criminal Appeal No. 46 of 1974.
Appeal by special leave from the judgment and
order dated the 23rd/24th July, 1973 of the Bombay High Court in Criminal As.
Nos. 44-4, 543 and 544 of 1973.
Lily Thomas, for the appellant (in Crl. A.
No. 133/73).
Yogeshwar Prasad, for the appellant (in Crl.
A. No. 46/74).
487 K. R. Nambiar, for the respondent (in Cr.
A. No. 133/73).
S. B. Wad, for the respondent (in Cr. A. No. 46/74).
The Judgment of the Court was delivered by
BEG, J. We propose to decide the two criminal appeals before us by special
leave by a common judgment. The only question which arises for consideration is
whether the sentence of death imposed upon the appellant in each case is
appropriate or deserved. Special leave was granted in each of the two appeals
solely on the question of propriety of sentence awarded. It is urged before us
that the lesser penalty of life imprisonment was enough, in the circumstances
of each of the two cases, to meet the ends of justice.
The first case before us is of Francis alias
Ponnan v. State of Kerala, where the facts were : The murdered man, Pappachan.
with some others had attacked Pandoth Joseph, P.W. 3, the brother of the appellant
on 28-11-1971, and P.
P. George, P.W. 4, the brother-in-law of the
appellant, on 23-12-1971, at about 10 p.m. On each occasion, a F.I.R. was
lodged and the injured had to be sent to Hospital. In the second incident,
George, P.W. 4, the brother-in-law of the appellant,, was so badly injured that
he had to remain in hospital for 17 days. Close upon the heels of this attack
at about 10 p.m. on 23-12-1971, upon the brother-in-law of the appellant, came
the incident of 24-12-1971 for which the appellant has been charged, convicted
for murder, and sentenced to death. It appears that several witnesses spoke of
the determined manner in which the appellant had told them that he had made up
his mind to kill Pappachan. It is evident that the appellant's mental balance
had become seriously disturbed. On 24-12-1971, in the afternoon, the appellant
hid himself in a compound waiting for Pappachan to come along. On seeing the
deceased pass along a road on, a bicycle at about 3 p.m., the appellant came
out of the compound with a chopper in his hand and chased and attacked
Pappachan with it so that the deceased fell down after exclaiming : "O my
mother ". The appellant then left the scene. The incident took place in
broad day-light and was witnessed by passersby who gave evidence at the trial.
The post-mortem report indicated that there were three incised wounds on the
head of the deceased in addition to a contusion below the left eye and
abrasions on the leg and another-on the left scapular region which was
fractured. It was apparent that the appellant intended to kill Pappachan
deceased. and he made no secret of his intention to do so although, at the
trial, he denied knowledge of the incident.
-177 Sup.CI/75 488 The question of
appropriate sentence to be awarded in the case was argued particularly in the
High Court and both the Judges of the Division Bench which heard the death
reference gave their reasons separately for awarding death sentence.
Moidu, J., said "So we, have to.
consider the facts and circumstances of the present cam to hold whether the
death sentence is the proper sentence to be passed on the appellant. In this
case, the appellant met P.Ws. 1 to 9, 13 and 17 before and after the incident
and made public declaration that he would do away with Pappachan. He had
predetermined to kill the deceased Pappachan. There was absolutely no
provocation whatsoever during the incident and nothing of that sort was
suggested to P.Ws. 1 and 2. The appellant committed murder only to wreak
vengeance against deceased Pappachan on account of two previous incidents
mentioned in Exts. P-2 and P-3. This is a case in which the appellant caused
the death of Pappachan in a prearranged manner to wreak his vengeance against
him. The murder was cold-blooded and premeditated. The aggravating stances are
such that it is difficult to hold that the lesser of the two sentences provided
by law would meet the ends of justice. He has rightly been sentenced to death
for the murder of Pappachan. We find no ground to interfere with the conviction
or the sentence".
Narayana Pillai, J., said "I agree. The
incident took place in broad daylight on a public road. The first information
statement was given by P.W. 1 within a short time after the occurrence. The
facts mentioned therein corroborate his evidence before Court. His evidence is
also corroborated by the evidence of the other occurrence witness, P.W. 2.
Their evidence is corroborated by the circumstances brought out in the cast
also. There was a motive for the occurrence. The appellant was absconding for a
long time. The chopper M.O. I used by him at the time of the occurrence was
recovered pursuant to the information given by him. The prosecution evidence is
completely dependable.
The victim died immediately after he
sustained the injuries. The appellant was waiting for the victim to come that
way. He hired a bicycle and came to the place knowing before hand that the
deceased would come that way.
It was a revengeful and merciless attack that
he made on the deceased. He ran after the deceased and began the attack by
striking him with the chopper on the head. Even after the deceased fell down
from the bicycle he did not spare him. Two more injuries were inflicted with
the chopper. In the circumstances nothing but the extreme penalty would meet
the ends of justice".
489 Miss Lilly Thomas, appearing for the
appellant Francis, contended that the case did not call for the extreme penalty
of death. She also submitted that the appellant had not had a separate
opportunity to show cause why sentence of death should not be imposed upon him.
In Jagmohan Singh v. State of U.P.,(1) the constitutional validity of death
penalty was assailed, upon the ground, among others, that no provision is made
for a separate hearing on this question, but a Constitution Bench of this Court
repelled it. The appellant had raised and was heard on the question of
correctness of his sentence in the High Court. The procedure for a hearing
before confirmation of the death sentence is de-signed to afford the person
sentenced to death a hearing on this question too before the death sentence is
confirmed. The question of appropriate sentence, however, deserves some more
consideration than the learned Judges of the High Court had given to it.
It is clear that there was no case of
provocation made out and much less of any grave or sudden provocation to
Francis during or immediately preceding the incident so as to enable the
appellant to plead the first Exception to Section 300 Indian Penal Code. The,
provocation contemplated by the law must be grave as well is sudden so as to
deprive the individual of the power of self control before the first Exception
to Section 300 could apply. Nevertheless, in deciding whether the case merits
the less severe of the two penalties prescribed for murder a history of
relations between the parties concerned, the background, the context, or the
factual setting of the, crime, and the strength and nature of the motives
operating on the mind of the offender, are relevant considerations. The state
of feelings and mind produced by these, while insufficient to bring in an
exception. may suffice to make the less severe sentence more appropriate.
In Ediga Anamma v. State of Andhra Pradesh(2)
this Court had dealt with a case of a premeditated and cleverly planned murder
by a young woman whose mind had become filled with frenzy and irrational
jealously because of rivalry between her and the murdered woman for the
affections of an illicit Iover or paramour. Her sentence for murder was reduced
from death to life imprisonment. If that was done in that case, the motives of
the appellant, Francis, before us, who decided. in his obviously alarmed and
frenzied state of mind, to do away with someone who appeared to him to be a
standing menace to the lives and limbs of his near and dear ones, could not be
said to be more reprehensible. Nor could his inflamed feelings be less worthy
of consideration in pronouncing upon the question. of sentence. It is not
enough, for deciding such a question, to find that facts of the case indicated
deliberation or premeditation before the offence although this is quite
important. It is true that the attack upon the appellant's brother-in-law had
taken place on the previous night on 23rd December, at about 10 p.
m. whereas the murder was committed at about
(1) [1973] (1) S.C.C. P. 20 [1974] 3 S.C.R. 329 490 3.30 p.m. on 24th December.
Nevertheless, even the period of time which had elapsed between the two
incidents was not so lengthy as to enable us to say that the effect of the
provocation given by the previous night's occurrence, in the background of
another similar occurrence, and the feelings of fear or alarm it must have
engendered, so as to disturb the mind of a person in the position.-of the
appellant, must have evaporated before the murder was committed. These may have
become even intensified by brooding over or talking and thinking about the
incidents. No doubt the appellant was about 30 years in age, but that is not a
guarantee against the disturbance of mind which could be produced by the, kind
of attacks which had previously taken place on his elder brother and his
brother-in-law. Although, the previous incidents could not constitute
sufficient provocation to reduce the crime of murder to one of culpable
homicide not amounting to murder, yet, we think that the context of the crime
justified the imposition of a lesser penalty than that given in this case.
The next case for decision before us is that
of Bhagwanta v.State of Maharashtra. Here, we find that the appellant was
prosecuted and tried jointly for three murders committed at different times and
places close to each other. The three victims for whose murder he was tried
were : Bhagubai, the appellant's mother-in-law; Sarjabai, the sister-in-law of
the appellant; and, Sakharam, the husband of Sarjabai. The victims used to be
beguiled by the appellant on one pretext or another to accompany him on a
journey and did not return after that. Three other alleged victims, who
similarly disappeared were: Mainaji, the father-in-law of the appellant; and
Bhim, the appellant's own brother; and, Thakubai, the daughter of Sakharam. The
appellant was not tried for the murder of the last mentioned three persons
presumably because more than three similar charges could not be joined at one
trial. The appellant had confessed the commission of murder to his wife,
Giriabaj, P.W. 3, when she pestered him too much to find out the whereabouts of
her relatives who had disappeared. He had shut her up by threatening to do
violence to her also if she divulged the secret. But, she and her sister
Sitabai had managed to escape and to reveal to the police the highly suspicious
facts and circumstances indicating that the appellant was the murderer. The
appellant had also absconded. The bodies of some of the murdered persons were
discovered and circumstances showing the extremely suspicious movements and
conduct of the appellant, who was last seen with the murdered individual on
each occasion and then had made false assertions about the whereabouts of the
victim, were duly proved. The appellant had even made a confession recorded
before a Magistrate. But, he had gone back on the confession at the trial.
However, both the Trial Court and the High Court had, after thoroughly
examining all the facts and circumstances, correctly reached the conclusion
that the appellant was the murderer.
In Bhagwanta's case, no such fact was proved
as could so disturb or unhinge the mind of an average individual as to impel
him towards murder. It is apparent, from the-way in which the appellant
committed gruesome murders, the relationships of those he. murdered, the
absence 491 of any intelligible reasons for which he could have murdered them,
and the casual manner in which he used to dispose of the bodies, that he had no
respect whatsoever for the sanctity of human life. He, apparently, murdered for
the sheer pleasure which killing those he disliked for some reason seemed to
give him.
It is possible that the appellant Bhagwanta
had the diseased mind of a paranoiac. No evidence was, however, given to show
that he suffered from mental ill health of any type.
Moreover, every sort of mental disorder does
not either absolve the sufferer from criminal liability or justify a less
severe punishment. No evidence is there to suggest that the appellant suffered
from insanity or mental ill health of a kind which incapacitated him from
understanding the nature of the acts committed by him or that they were wrong.
Indeed, evidence in the case indicates that he knew very well what he was doing
and that this was wrong.
It is not possible for Courts to attempt, on
the slender evidence there generally is on this aspect, to explore the murky
depths of a warped and twisted mind so as to discover whether an offender is
capable of reformation or redemption, and, if so, in what way. That is a
subject on which only experts in that line, after a thorough study of. an
individual's case history, could hazard an opinion with any degree, of
confidence. Judicial psychotherapy has its obvious and inherent limitations.
The mere possession of a warped or twisted mind, which many a criminal has,
could not either absolve him from criminal liability or mitigate his crime.
Courts are generally concerned only with the nature and extent of punishment
called for once the accused's guilt is established. In considering the question
of appropriate sentence to be awarded, while the common frailties and failings
of ordinary human beings, to which the offender gives vent, may, without
affecting the criminality of the acts punished, be enough to show that a lesser
sentence win meet the ends of justice, abnormal twists of the mind or
indications of an obdurate and unrelenting viciousness of mind and conduct of
the ,offender may show the need for a severer sentence.
If, however, proved facts disclose that
something even falling short of either legal insanity, satisfying the test laid
down in M'Naghten Rules, which will negative criminal liability, or,
"insane impulse", which is receiving increasing jurisprudential
recognition for absolving its victim from criminal liability, or, grave and
sudden provocation, which will reduce a culpable homicide from murder to one
which is not murder, is present in the case so as to only disturb the normal
balance of an individual's mind, what is proved may be sufficient to avert the
death penalty.
We think that, while some mitigating
circumstances of this kind, discussed above, were shown to exist in the case of
Francis appellant, the circumstances revealed in the case of Bhagwanta are of
an aggravating kind. Indeed, there is a vast difference between the two
cases-the difference between the case of a scared 492 human being, with a weak
control over his feelings, carried away by what was too strong and too long
lasting a gust of passion against another who bad given him genuine cause for
anger, and that of a person whose conduct, in carrying out cold blooded and
calculated murders of several relatives, who had apparently done nothing to
provoke him, discloses nothing short of a fiendish callousness and cruelty. If
death sentence, a legally prescribed punishment still considered necessary to
deter potential murders from violating the basic law of civilised human
existence-"thou shalt not kill"--is deserved by an offender, we think
that Bhagwanta, appellant, is such an offender.
The result is: We allow the appeal of Francis
alias Ponnan only to the extent that we set aside the sentence of death passed
upon him, but we maintain his conviction and impose a sentence of life
imprisonment upon him for the offence of murder committed by him.
We, think that Bhagwanta was rightly
convicted and sentenced to death. We, therefore, dismiss his appeal.
Cr. A. No. 133/73 partly allowed.
P.B.R. Cr. A. No. 46/74 dismissed.
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