1. The Sessions Judge awarded capital punishment to the accused person; and Isaac, J., agreed with the Sessions Judge, while Mathew, J., preferred to award the lesser sentence of imprisonment for life. The cases have been placed before me to resolve the tie.
2. The Supreme Court has said in Dalip Singh v. State of Punjab, AIR 1953 SC 364 that the discretion to choose the punishment is on the trial Court, and if the trial Court imposes the lesser punishment, the Appellate Court will not interfere and award capital punishment unless it finds that no normal judicial mind would have awarded the lesser punishment in such a case. This Court has also pointed out this principle in Raman v. State of Kerala, ILR (1968) 1 Kerala 218. The position is different in a case where the trial Court awards capital punishment and the Appellate Court reduces it to life imprisonment. In such a case, any extenuating circumstance will justify the Appellate Court's action.
3. In these cases. Mathew, J., is of opinion that there was no provocation, whileIsaac, J., is of opinion that there was no provocation. Isaac, J., observes:
'There is no evidence that the accused was provocated by this incident. In the light of his persistent denial of this incident, there has not been even a suggestion put to the witnesses that the accused was provoked by the exchange of words between him and the deceased.'
And Mathew, J., observes on this question:
'I do not think it necessary that any witness should have said that by these words the accused was provoked. If the court comes to the conclusion that the words used by the deceased would provoke a reasonable man, I think, that would be sufficient, though no witness has spoken to the provocation.'
4. The standard to see whether there was provocation or not must, as observed by Mathew, J., be the reasonable man's standard. No witness need speak that the accused person was actually provoked. On the other hand, if the words used, coupled with the relationship of the parties and the circumstances of the case, were sufficient to provoke a reasonable man and if the Court thinks that there was such provocation, the absence of witnesses who speak that the accused person was, in fact, provoked is no reason for holding that there was no provocation. If the standard is not the reasonable man's standard, then, a person who is short-tempered and who allows himself to be provoked easily will have an advantage in the eye of law over a person who is not so easily provoked and who controls himself and keeps a more equable temper. Therefore, I agree with Mathew, J., that the standard should be a reasonable man's standard, and for that, no evidence of any witness is essential.
5. Now I shall come to the facts of the cases before me. Admittedly, a previous incident took place about half an hour prior to the murder. Fairly (or even considerably) provocative words were used; and the words used are mentioned in the judgment of Mathew, J. 'Selling one's wife' cannot be said to be an innocent expression which should not provoke. Considering the relationship of the parties (the deceased person was a nephew of the accused person) and also the import of the words used and taking into consideration the circumstances of the case, it is clear that there was provocation. (The question whether the provocation was grave and sudden need not be considered in these cases, because if it was grave and sudden, the offence itself would have been only culpable homicide and not murder. The question here is only whether the provocation can be considered as a sufficient ground for giving thelesser punishment for the offence of murder). If the accused person had a gun at the time and if he shot the deceased person immediately after the provocative words were uttered, no serious objection could have been taken if the lesser punishment alone was inflicted: since there was provocation, the proper punishment would have been only life Imprisonment.
6. The question then is whether the provocation disappeared, in other words, whether there was sufficient time for the provocation to cool down and disappear. The murder took place within 30 minutes of the exchange of words: the accused person did not then have a gun with him: he went to his house situated about 75 marus from the scene, took the gun and came to the place where the deceased person and others were working: and he then shot the deceased person. Can it be said, in these circumstances, that there was sufficient time for the provocation to cool down? Can it be characterised that the murder was a calculated and deliberate one not influenced in any way, by the provocation? In such a situation, I venture to say, I would rather err on the side of leniency than on the side of stringency and harshness. Considering the relationship between the parties, the implication of the words used and the short time lag between the provocative incident and the murder, I agree with Mathew, J., and hold that the lesser punishment of imprisonment for life is quite sufficient to meet the ends of justice in these cases.
K.K. Mathew and M.U. Isaac, JJ.
7. Following the opinion of the third Judge, we reject the reference for confirmation of the sentence, and sentence the accused to undergo imprisonment for life.