Judgment :- 1. This reference and the appeal arise out of the judgment of the Sessions Court, Tellicherry in Sessions Case No. 57 of 1967. The accused was convicted by the learned judge for the offence of murder, and sentenced to be hanged under S.302 IPC. The learned judge has submitted the proceedings to this court under S.374 Criminal Procedure Code for confirmation of the sentence; and the accused has filed the appeal against the conviction and sentence. 2. The occurrence took place at about 8.00 A. M. on 14-4-1967 in Kumbadji Village within the jurisdiction of the Badiadka Police Station in Kasaragod Taluk. The accused is a man aged about 54 years, and the deceased is his sister's son aged about 30 years. P. Ws.1 and 2 are his younger brothers, and pw. 7 is a younger brother of the accused. Ext. P-12 is a plan of the scene of occurrence. The deceased with his brothers pws.1 and 2 and their parents lived in a house marked H4 in the plan. pw. 7 was also living in a part of the same house. The accused lived in the house marked H9, which is about 385 feet to the west of the deceased's house. About the same distance to the north of the deceased's house, his family has got an arecanut garden. The relation between the accused on the one part and the deceased, his brothers and their parents on the other hand had been extremely hostile for the past few years. There is a well in front of the house of the deceased; and it appears that there was also dispute about drawing water from this well. 3. On the morning of 14-4-1967, the deceased along with the brothers pw.1 and pw. 2 started from their house to their arecanut garden for watering the arecanut trees. They met the accused in front of their house by the side of the well; and there was an unpleasant exchange of words between the accused and the deceased. The accused went to his house; and the deceased went to their arecanut garden along with his brothers, where they got themselves engaged in the process of watering the trees. Sometime later, the accused came to the southern boundary of their coconut garden with a loaded double-barrelled gun, and shot the deceased at his chest from a distance of 28 feet. Sometime later, the accused came to the southern boundary of their coconut garden with a loaded double-barrelled gun, and shot the deceased at his chest from a distance of 28 feet. The accused fell down, crying that he was killed; and he expired within five minutes. The accused ran away with the gun towards his house, The occurrence was witnessed by P. Ws. 1, 2 and 6. pw. 6 is a common relation of the accused and the deceased; he is aged 19 years. He has a paddy field about 50 feet to the south of the arecanut garden of the deceased; and pw. 6 was watering his betel-pepper in the above field at the time of the occurrence. pw. 7 was then in his house. He heard the sound of the shot, and came out to the place of occurrence, when he saw the accused running away with the gun, and the deceased breathing his last in a pool of blood. pw. 8 is another, neighbour, who was attracted by the sound of the gun shot, and the death-cry of the deceased. He also saw the accused running away with the gun, and the deceased breathing his list. 4. The Police Station is seven miles away from the scene of occurrence. pw. 7 went to the station, and lodged an information. His statement was recorded at 11.00 A. M. by pw. 15, the Sub-Inspector of Police, who registered a crime against the accused for the offence under S.302 IPC. Ext. P-13 is the Statement, and Ext. P-33 is the First Information Report. He immediately reported the matter to pw. 16, the Circle Inspector of Police, proceeded to the place of occurrence, and conducted an inquest on the body of the deceased. Ext. P-15 is the inquest report. The material objects found at the scene of occurrence were also taken into custody. The accused was arrested from his house at 7 P. M. on the same day by P. W. 15. Two pellets were recovered from the pocket of the shirt which the accused was then wearing. pw. 15 also recovered a double-barrelled gun, some gun-powder and other materials along with the licence for the said gun issued in the name of the accused from the house of the accused. Two pellets were recovered from the pocket of the shirt which the accused was then wearing. pw. 15 also recovered a double-barrelled gun, some gun-powder and other materials along with the licence for the said gun issued in the name of the accused from the house of the accused. Mahazars were prepared for all these matters; The dead-body was sent to the Government Hospital for examination, which was conducted by pw. 3, an Assistant Surgeon. Ext. P-1 is the post-mortem certificate. After completing the investigation, pw. 16 submitted final report before the Second Class Magistrate, Kasaragod, charging the accused for the offence of murder. In the meanwhile, the necessary material objects were sent for the chemical examination, and the certificate of the Chemical Examiner was obtained. The pellets recovered from the pocket of the accused and the gun and other materials recovered from his house, as well as the pellets found in the body of the deceased on post-mortem examination were sent through the Court to the Fire Arm Expert for examination. His reports were also obtained; and they are Exts. P-31 and P-32. The learned Magistrate committed the accused for trial to the Court of Session; and he was convicted and sentenced as stated above. 5. Both in the Committal Court and in the Court of Session, the accused denied the whole occurrence. Ext. P-34 is the statement of the accused in the Committal Court under S.342 of the Criminal Procedure Code. He stated therein that he heard the sound of a gun shot, while he was sleeping in his house; that he walked towards the place where from the shot was heard, but did not go to that place; that the deceased and pw.1 had guns; that he heard people talking that the deceased and pw.1 shot doves and that one shot accidentally hit the deceased, and he died; and that the witnesses were giving false evidence due to enmity. He denied that the deceased and his brothers pw.1 and pw. 2 met the accused on that day in front of their house, and any exchange of words took place between him and the deceased. He admitted the recovery of the double-barrelled gun, M. 0.1 and other objects from his house. He also, admitted that there was enmity between him and the deceased and the members of his family; but he added that it was compromised. He admitted the recovery of the double-barrelled gun, M. 0.1 and other objects from his house. He also, admitted that there was enmity between him and the deceased and the members of his family; but he added that it was compromised. - In his examination in the Court of Session, the accused stated that he had no idea about the incident, that this was a false charge foisted against him by the father of the deceased and others due to enmity. He gave the go-by to the dove shooting story; and in other respects he stuck to his version in the Committal Court. 6. The learned counsel, who appeared for the accused in this Court, contended that the prosecution evidence was not trustworthy, and the charge against the accused has not been established beyond reasonable doubt. The learned Sessions Judge has examined the evidence thoroughly; and he has accepted the prosecution case in its entirety. No objection could possibly be taken to this discussion or appreciation of the evidence. Ext. P-20 is a certified copy of a petition dated 4-1-1964, which the accused filed against the deceased and pws.1 and 2 before the District Superintendent of Police. It states that it was the deceased and another who actually murdered one Ramanna Rai, though the deceased was treated as an approver and the case ended in acquittal, that the deceased and P. Ws.1 and 2 were threatening to murder the accused, and that immediate enquiry may be conducted into the allegations and action taken against them to bind them over for good behaviour. P. W. 12, the Head Constable attached to the local Police Station, has stated that he enquired into the above petition; and both parties were warned. Ext. P-21 is a certified copy of a police charge-sheet dated 10-4-1964 filed against the accused under S.324 IPC. for voluntarily causing hurt to P. W.1 by stabbing him with a knife, and under S.323 IPC. for voluntarily causing hurt to his mother by pelting her with stones That complaint was finally compounded. P. Ws.1 and 2 have given evidence that, some time before the occurrence, there was an unpleasant exchange of words between the deceased and the accused. The accused himself has stated that this is a false case foisted against him by the deceased's father and others. P. Ws.1 and 2 have given evidence that, some time before the occurrence, there was an unpleasant exchange of words between the deceased and the accused. The accused himself has stated that this is a false case foisted against him by the deceased's father and others. Therefore, there can be little doubt that the relation between the accused on the one part and the deceased and the members of his family was very hostile. 7. P. Ws.1 and 2 have given evidence about the whole occurrence. They said that they saw the accused coming with the gun, M. 0.1, from the east along the bund of the field on the southern side of their arecanut garden, wherein they were watering the arecanut trees, and shooting the deceased from the point marked A in the plan, Ext. P-12. They have further stated that at that time, the deceased had mud pots carrying water in both his hands, and that it was when he had poured water from one of the pots, and was turning with the other pot for watering, he was shot at by the accused. They have also said that the deceased fell down crying that he was killed, and he expired within a few minutes, while the accused ran away towards the house with the gun. P. W. 6, who is a common relation of the accused and the deceased, has given the same evidence. The evidence of P. Ws. 7 and 8 corroborate the above evidence. P. W. 7 is the accused's own brother. Ext. P-13, the first information statement given by him contains the same version. Except the general allegations that the witnesses are on inimical terms with the accused, nothing has been pointed out to discredit the evidence of these witnesses. This allegation has also no substance as regards P. Ws. 6, 7 and 8. The evidence of pw.14, the Fire Arm Expert, shows that the injuries found on the body of the deceased could be caused by shooting with the gun, M. 0.1, which admittedly belongs to the accused. There can, therefore, be no doubt that the deceased died as a result of the shot fired by the accused by his double-barrelled gun in the manner spoken to by the prosecution witnesses, and he is guilty of the offence of murder. 8. There can, therefore, be no doubt that the deceased died as a result of the shot fired by the accused by his double-barrelled gun in the manner spoken to by the prosecution witnesses, and he is guilty of the offence of murder. 8. The learned counsel for the accused finally contended that the accused did not deserve the extreme penalty of the law. It was submitted that the words used by the deceased against the accused, when they met in front of the house of the deceased sometime before the occurrence, were extremely provocative; that the accused must have committed the act under the influence of the said provocation, and that this is an extenuating circumstance. There are two versions about the alleged exchange of words. According to P. W.1, the accused told the deceased and P. Ws.1 and 2 that they should not take water from the well, they replied that they were not going to do so, and then the accused said that he knew that the deceased had built a house and had become a big man, to which the deceased retorted that he had built a house, and it was not by selling the wife of the accused. According to P. W. 2, when the accused said that the deceased and P. Ws.1 and 2 should not take water from the well, the deceased asked the accused why he should talk to them, and told him to bring his wife and children and feed them. There is evidence in the case that a few months before the occurrence the accused had chased out his wife and children from his house. According to the accused, they went to the wife's house of their own accord. The shooting took place according to pw.1 about four nazhikas (about 11/2 hours) after the deceased and P. Ws.1 and 2 went to their arecanut garden. pw. 2 stated that it was within half an hour, and P.W. 6 stated that it was about fifteen minutes after the deceased and his brothers came to the garden that the shooting took place. Though the whole incident is denied by the accused, the accused is entitled to plead for the lesser sentence on the basis of the prosecution evidence. 2 stated that it was within half an hour, and P.W. 6 stated that it was about fifteen minutes after the deceased and his brothers came to the garden that the shooting took place. Though the whole incident is denied by the accused, the accused is entitled to plead for the lesser sentence on the basis of the prosecution evidence. It was, therefore submitted that according to the version of P. W.1, the words used by the deceased were highly provocative, that the time lapse between this incident and the shooting was according to P. W. 6 only fifteen minutes, and that it should be presumed that the accused was acting under the influence of the emotion created by the said words. It is very difficult to accept this contention on the facts and circumstances of this case. That there was great hostility between the deceased and the members of his family on the one hand and the accused on the other has been established beyond doubt. After the exchange of words, the deceased along with his brothers went towards the north for watering their garden, and the accused towards the east to his house. There is no evidence that the accused was provoked 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. The evidence is clearly to the effect that he came from the direction of his house, walked towards the west along the bund of the neighbouring field, and fired the shot with his double-barrelled gun at the chest of the deceased from a fairly short range. It was done at a time when the deceased was innocently carrying on his agricultural operations, and he could scarcely expect any assault from the accused. The deceased fell down with numerous injuries on his chest and other vital parts of his body, and died within a few minutes in a pool of blood in the presence of his two brothers, and other neighbours and relations, who rushed up to the scene of occurrence. And the accused ran away with his gun, as it is described in Ext. P-13, the First Information Statement given by his own brother, without any compunction, and apparently with the satisfaction that he has done it. And the accused ran away with his gun, as it is described in Ext. P-13, the First Information Statement given by his own brother, without any compunction, and apparently with the satisfaction that he has done it. The victim is his own sister's son. The crime was committed in a heinous and wrath provoking manner. The trial court has, therefore, exercised its discretion rightly in awarding the maximum penalty of law. 9. In the result, the Criminal Appeal is dismissed; and the conviction of the accused and the sentence passed by the Court of Session are confirmed. Mathew J. 1A. I agree with my learned brother that the conviction of the accused under S, 302 of the Indian Penal Code must be confirmed. But I regret my inability to confirm the sentence. 2A. The occurrence took place between 7.30 and 8.00 a. m. on 14-4-1967. According to pw. 1, the accused was residing in a house about 75 Marus to the east of the house in which the deceased, P. W.1 and P. W. 2 resided. pw.1 has sworn that he, pw. 2 and the deceased saw the accused near the well situate in front of their house, that the accused said to them that they should not take water from the well, that the deceased then said that they have not come to take water from the well, that they were going to water the arecanut garden, that then the accused said "I know that you have built a house and become a big man", and that it was then the deceased retorted by saying that "he built a house and that it was not by selling your wife". Now, according to pw. 2, the occurrence took place at 7.30 a. m., that by 7 or 7.30 a. m. they reached the garden for watering the plants, that when they were going to the garden, the accused was standing by the side of the well, that the accused told them that they should not take water from the well and that the deceased then said to him that they were not drawing water from the well. pw. 2 also said that the deceased told the accused "why should you talk to us. You bring your wife and children and feed them", and that then they went to the garden and the accused to his house. pw. pw. 2 also said that the deceased told the accused "why should you talk to us. You bring your wife and children and feed them", and that then they went to the garden and the accused to his house. pw. 2 further said that the incident took place within half an hour of their reaching the garden. pw. 6 had stated that he saw the deceased, pw.1 and 2 coming to their garden, that it was about 15 minutes after he reached his garden that they came to their garden and that he reached his garden at about 7.15 a. m. He said that the distance between the well and the house of the accused would be about 75 Mams, that the incident took place while the deceased and pws.1 and 2 were watering the garden, that he heard the sound of a gun shot about 15 minutes after the deceased, pws.1 and 2 came to their garden and that the accused had licence for his double-barrelled gun. 3A. From the evidence I take the view that the occurrence took place some time between 7.30 and 8.00 a. m. I see no reason to disbelieve the evidence of pw. 1. I think, the words used by the deceased to the accused were highly objectionable, and any reasonable man hearing those words will attach a sinister significance to them. Coming as they did from his nephew, it is quite natural for the accused to have been provoked by them. 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. It is said that there was time for the accused to cool down. I agree that there was some time lag between the wordy altercation and the actual occurrence. Soon after these words were spoken by the deceased the accused went to his house, which is only 75 Marus away from the well, took the gun and came to the garden where the deceased was watering the areca plants. And if we believe the evidence of pw. 6 - and I see no reason to disbelieve it -the incident took place within 15 minutes of the arrival of pws. And if we believe the evidence of pw. 6 - and I see no reason to disbelieve it -the incident took place within 15 minutes of the arrival of pws. 1 and 2 and the deceased in their garden. If that be so, the time lag between the quarrel and the actual occurrence will be at the most about 30 minutes. Even assuming that there was sufficient time for the accused to cool down and that the provocation was not sudden or grave and the act of the accused would amount to murder, I think that the immediate cause of the act was the insult implied in the words used by the deceased. Those words must have been rankling in his mind and he must in all probability have been smarting under them. There is no evidence that the accused came to the well with the intention to cause any harm to the deceased. He had no weapon with him at the time. The previous enmity was not the proximate cause of the act, although it might be there in the background. 4A. In Deiasya v. State of Kerala 1962 KLT.111, Anna Chandy J. observed: 'Choice as to which of the two punishments prescribed by the section for murder is the proper one to be awarded, will depend upon the particular circumstance of each Case, but broadly speaking murder for gain and other sordid motives, murder committed in connection with sexual offences or with dacoity, preplanned, cold-blooded murder committed with unusual brutality and such murders that appear to be particularly heinous as to arouse judicial indignation may be considered as some of the cases deserving the extreme penalty. Of course, these cases are not exhaustive, but merely illustrative (See the Head note). 5A. In Balakrishnan v. State 1959 KLT 792 it was held that the probability of some provocation before actual stabbing is a mitigating circumstance for not awarding the sentence of death. In K. M. Nanavati v. State of Maharashtra AIR. 1962 SC. 605 the evidence showed that the accused there had not only regained his self-control, but was planning for the future. In K. M. Nanavati v. State of Maharashtra AIR. 1962 SC. 605 the evidence showed that the accused there had not only regained his self-control, but was planning for the future. He drove with his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, drove in his car to the office of the deceased, then to his flat, went straight to the bed-room of the deceased and shot him dead. Between 1.30 p. m. when he left his house and 4.30 p. m. when the murder took place, three hours had elapsed, and therefore, there was sufficient time for him to regain his self-control, even if he had not regained it earlier. The murder was a deliberate and calculated one. The High Court finding that the accused was guilty of murder sentenced him to imprisonment for life. The Supreme Court said that the conviction of the accused under S.302 IPC. and the sentence of imprisonment for life were correct. I am referring to this case only to show that the Supreme Court did not express any disapproval in the High Court awarding only the lesser sentence, although the court characterised the murder as cold-blooded and calculated. The only mitigating circumstance in the case was the earlier provocation of the accused. 6A. On the matters having relevancy only on the question of sentence, it is well-known that no particular attention is being bestowed to elicit all the relevant facts by the lower courts in this country I think, in confirming a sentence of death by hanging, this court has the duty to find out whether there are any mitigating circumstances, whether they were adverted to by the lower court or not. In the proved circumstances of this case, I do not think that the extreme penalty of law is called for. I would, therefore, while confirming the conviction of the accused for the offence punishable under S.302 IPC. sentence him to imprisonment for life. In view of the difference of opinion as regards the sentence to be awarded, we place the case under S.378 of the Criminal Procedure Code before another learned judge. RaghavanJ. 1B. I would, therefore, while confirming the conviction of the accused for the offence punishable under S.302 IPC. sentence him to imprisonment for life. In view of the difference of opinion as regards the sentence to be awarded, we place the case under S.378 of the Criminal Procedure Code before another learned judge. RaghavanJ. 1B. 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. 2B. 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 m Raman v. State of Kerala (ILR.1958(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. 3B. In these cases, Mathew J. is of opinion that there was provocation, while Isaac 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." 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. 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. 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 the lesser 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. 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 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.