# FRANCIS ALIAS PONNAN v. STATE OF KERALA

- **Citation:** [1975] 1 S.C.R. 485
- **Court:** Supreme Court of India
- **Decided:** 1974-05-17
- **Case number:** Criminal Appeal No. 133 of 1973
- **Bench:** M. H. Beg Andy. V. Chandrachuo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/francis-alias-ponnan-v-state-of-kerala-6347
- **Pages:** 8

## Headnote

I'cnal Cude-S. 300-A1urder-Scniencc-<lro11//d.1 for reducing.
485
ft is not possible for courts to attempt to explore the murky depths of a
warped ~nd twisted mi!J.d so ·as to discover whether an offender is capable of
refonnat1on 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
coutd hazard an opinion wit~ any degree of confidence.
Judicial psycho:
therapy has its obvious and inherent limitations.
The mere possession of a
\varped or twisted mind 1 \vhich 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. Jn considering the question of
appropriate
sentence to
be
awarded, while the common frailities 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 viciou5ness of mind and conduct of the offender may show the need for a
severer sentence.
[491D-FJ
The murdered man had attacked the brother oi' 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 son1e days.
On the day
foilowing 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
n1ind to kill the deceased. The appellant hid himself in a compound waiting
fcir tlie deceased and when the deceased was ~oing on his bicycle, the appellant
chased him and at!acked 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
comn1itted 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
accotnpany him on a journey and the victims did not return after that.
The
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appellant was convicted and sentenced to death.
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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.
Jn 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 I_llind of the offender are ~elc~ant CC!nsideratio~s. _The state of
feelings and mind produced by these, while insufficient to brt~g in the excep·
tion, may suffice to make the less severe sentence more appropnate.
[489D-E]
In the instant case the motives of the appellant, who in hfs obviously frenzied
state of mind decided to do away with someone who appeared to him to be
a standing m~nace 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-GJ
It is not enough for deciding such a question to find that facts of the case
indicated deliberation or pre-meditation before the offence, although this is quite
486
SUPREME COURT REPORTS
[ 197 5] 1 s.c.R,
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 prev:ous ni~hc's occurrence, in the background of another
similar occurrence, and the feelings of fear or alarm whic,h must have engendered, so as to disturb the mind of a person in the position

## Text

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FRANCIS ALIAS PONNAN
v.
STATE OF KERALA
May 17, 1974
[M. H. BEG ANDY. V. CHANDRACHUO, JJ.J
I'cnal Cude-S. 300-A1urder-Scniencc-<lro11//d.1 for reducing.
485
ft is not possible for courts to attempt to explore the murky depths of a
warped ~nd twisted mi!J.d so ·as to discover whether an offender is capable of
refonnat1on 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
coutd hazard an opinion wit~ any degree of confidence.
Judicial psycho:
therapy has its obvious and inherent limitations.
The mere possession of a
\varped or twisted mind 1 \vhich 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. Jn considering the question of
appropriate
sentence to
be
awarded, while the common frailities 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 viciou5ness of mind and conduct of the offender may show the need for a
severer sentence.
[491D-FJ
The murdered man had attacked the brother oi' 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 son1e days.
On the day
foilowing 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
n1ind to kill the deceased. The appellant hid himself in a compound waiting
fcir tlie deceased and when the deceased was ~oing on his bicycle, the appellant
chased him and at!acked 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
comn1itted 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
accotnpany him on a journey and the victims did not return after that.
The
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appellant was convicted and sentenced to death.
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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.
Jn 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 I_llind of the offender are ~elc~ant CC!nsideratio~s. _The state of
feelings and mind produced by these, while insufficient to brt~g in the excep·
tion, may suffice to make the less severe sentence more appropnate.
[489D-E]
In the instant case the motives of the appellant, who in hfs obviously frenzied
state of mind decided to do away with someone who appeared to him to be
a standing m~nace 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-GJ
It is not enough for deciding such a question to find that facts of the case
indicated deliberation or pre-meditation before the offence, although this is quite
486
SUPREME COURT REPORTS
[ 197 5] 1 s.c.R,
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 prev:ous ni~hc's occurrence, in the background of another
similar occurrence, and the feelings of fear or alarm whic,h must have engendered, so as to disturb the mind of a person in the position of the appellant,
n1usi have evaporated before the murder was committed. These may h.._ve
become even intensified by broodin~ over or talking and thinking· about the
ini..:idents.
Allhough the previous incidents could not constitute sufficient provocation to redu:e the. c;ime of murdo.;1 '.o one of cv.lpab'1e homic1d~ not amounting lo murder, yet, the context of the crime justified the imposition of a lesser
penalty than that given in this case.
[489G; 490A-C]
Jagmahan Singh v. State of U.P. [1973] l s.C.C. 20 referred to.
Ediga Anama v. State af Andhra Pradesh; [1?74] 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 whatsover for the sanctity of human life.
He apparently murdered
for the .<;beer pleasure which killing those he disliked for some reason seemed
to give him.
Fu1thermo e th·."!re i' no ev dence lO sugg=st Lhat '.he
appellant
suffered from insanity or mental ill-health of a kind which incapacitated hiin
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 thai this was wrong.
[49UH; 491A-C]
If, however, proved facts disclose that svmething even faUing short of either
legal insanity, satbfying the tests laid down in M'naghtcn rules, which is j_·eceiving increasing ju:isprudentinl ro;cognition ior a·b<>olv:ng its victim from crim·nal
liability, or grave and sudden provocation. which will reduce a culpable homicide from llUlrder to one which is not murder. is present in the case so as to
only disturb the normal balance or 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 cal::ul. ted murders
of seve:-al relative·.:; disclo5e nothing short of
a
fiendish
callousness
and
cm'1ty. [491G-H; 492A-B]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 133
of 1973.
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Appeal by special leave from the judgment and order dated the
4th January, 1973 of the Kerala High Court in Cr\. A. No. 348 of
1972 and Referred Trial No. 18 of 1972.
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Criminal Appeal No. 46 of 1974.
Appeal by special leave from the judgment and order
23rd/24tn July, 1973 of the Bombay
High
Court
in
As. Nos. 444, 543 and 544 of 1973.
dated the
Criminal
Lily Thomas, for the appellan{ (in Cr\. A. No. 133/73).
Yogeshwar Prasad, for the appellant (in Crl. A. No. 46/74).
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PONNAN V. KERALA (Beg, ], )
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
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BEG, J. We propose to decide the two criminal appeals before
us by special leave by a common
judgment.
The
only
question
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which arises for consideration is whether the sentence of death im-
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posed upon the appellant in each case is appropriate Qr
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 Po11na11 v. Stale
of
Kaala, where the facts were : 'I/le 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 occ"sion, a F, l.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 abont 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 min:!
lo kill Pappachan. It is evident that the appellant's m~ntal balance
had b~come seriously disturbed.
On 24-12-1971, in the afternoon.
the appellant hid himself in a compound waiting for Pappachan to
conic 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 passers-by 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.
1.1-177 Su~.Cl/75
488
SUPREME COURT REPORTS
[1975] 1 s.c.R.
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 case 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 pre-determined 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
pre-arranged
manner to wreak his vengeance against him.
The murder
was cold-blooded
and
pre-meditated.
The
aggravating
circumstances are such that it is difficult to hold that the
lesser of the two sentences provided by Jaw 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 thereii1 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
case also.
There was a motive for the occurrence.
The
appellant was absconding for a long time.
The chopper
M.O. 1 used by him at the time of the occurrence was rncovered 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 IQ the place knowing before hand
that the deeeasecl 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
-0f justice".
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PONNAN V. KERALA (Beg, J.)
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Miss LiUy Thomas, appearing for th·! appellant Francis, contend·
ed that the· ~asc did :10t call for the extreme penalty of death. She
also submi• · - that the appellant had not had a separat~ opportunity
to show ca;i; .· •.1hy scrtcnce of death should not be imposed upon
him.
In Jagmoha11
Singh v. State of U.P.,(I)
the constitution"!
validity of death penalty was assailed, upon the ground, among others,
that no provision is made for a separat> 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 designed 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
as
"sudden so as to deprive the individual of the power of self control
before the first Exception to Section 300 could apply. · Nevertheless,
in dccidin& whether the case merits the less severe of the two penalties prescnbed 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 th~
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 Et!iga Anamma v. Stale of Amll(ra Pradesh,(") this Court had
dealt with a case of a premeditated and cleverly planned murder by
a young woman whose mind had become fillrd with frenzy and irrational· jealously because of
rivalry between her and the
murdered
woman for the affections of an illicit lover 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
a\vav with son1conc v.·ho appeared to h_im to b~ a standinl? 1ncnacl! to
the lives ~nd limbs of his near·and dear ones, could not be saiJ to
he more reprehensible. Nor could his inflamed feelings he less worthy
of consideration in pronouncing uoon the question of sentence. Tt is not
enough. for deciding such a question, to find _that facts- of the case
indicated deliberation or pren1c<litation before the offence ahhou2h
this is qufte important. It is true that the attack uoon the ap~llant's
brother-in-Jaw fiad taken place on the previous night on 23rd D~ccm
ber, at about 10 p. m. whereas the murder was committed at about
(I)\ 1973] Ill s.c.c. r. 20
(2) [t974] 3 S.C.R. 329
490
SUPREME COURT REPORTS
(197511 s.c.R.
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
th~ feelings of fear or alarm it must have engendered, so as to disturh
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-Jaw. Although, the previous incidents could
not constitute sufficient provocation to reduce the crime of murder to
one of culpable homicid·~ 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·
Jaw 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
l'ather-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, Girjabai,
P.W. 3, when she pestered him too.much to find out the whereabouts
of her relatives who had disappeared. He had shnt 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 mnrderer.
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 mnrdered 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
n1urderer.
Jn Bhagwanta's case, no such fact was proved as could so disturb
or unhincre the mind of an average individual as to impel him towards
murder.
0 lt is apparent, from the way in which the appellant committed
gruesome murders, the relationships of those he murdered, the absenco
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PONNAN V, KERALA (Beg, J.)
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of any intelligible reasons for which he could have murdered them
and the c~sual manner in which he used to dispose of the bodies, tlrat
he bad 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.
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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 psycho-therapy has its obvious and inherent
limitations.
The mere
possession of a
warped or twisted mind,
which many a criminal has, could not either
aQsolve
him
from
criminal
liability
or mitigate his crime.
Courts arc
generally
coneemed 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 frailities 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.
If, however, proved facts ~sclose that something even falling shon
of either
legal
insantity,
satisfying the
test laid
down
in
M'Naghten Rules, which will negative criminal liability, or, "insane
impulse'', which is receiving increasing jurisprudential recognition for
nbsolving 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 pr~sent in the case so as to only disturb the normal balance of an individual's mind, what is proved may be sufficient tn
avert the death penalty. We think that, while some mitigating circumstances of this kind, discussed above, were shown to exist in the case
of Fmncis 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
SUPREME COURT REPORTS
(1975] 1 S.C.R.
human being, with a weak control over his feelings, carried away by
what was too strong and too long 1'Lsting a gust of passion against another who ha<l given him genuine cause for anger, an<l 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
existencc-"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
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to the extent that we set aside the sentence of death passed upon him.
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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. 133173 partly allowed.
P.B.R.
Cr. A. No. 46/74 dismissed.
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