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PETITIONER: FRANCIS ALIAS PONNAN

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT17/05/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: 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 brother- in-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

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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

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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;  492A- B]

JUDGMENT: 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

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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

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             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

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(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  cir- cumstances  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

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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  provo- cation, 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.

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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. 493