Joseph Alias Jose, Appellant V. State Of Kerala, Respondent.

Joseph Alias Jose, Appellant V. State Of Kerala, Respondent.

DATE : 08-02-1996 1996-(102)-CRLJ -4094 -KER

JUDGE(S) : K G Balakrishnan S Krishnan Unni KERALA HIGH COURT

JUDGMENT

BALAKRISHNAN, J. :- Appellant was tried by the Court of Sessions, Thodupuzha and was found guilty of the offence punishable under Section 302, IPC, and by the judgment of the Sessions Judge dated 21-1-1992 he has sentenced to undergo imprisonment for life. Though he was found guilty of offence punishable under sections 449 and 309, IPC, there was no separate sentence. The appellant filed Crl. A. No. 137/92 challenging the conviction and sentence, and the Division Bench of this Court confirmed the conviction of the appellant under Section 302, IPC, but as regards the sentence, the matter was remanded to the Sessions Judge for fresh consideration. The Division Bench was of the opinion that on a perusal of the judgment it would find that there was no proper consideration by the learned Sessions Judge as to whether the case was coming within the category of ‘rarest of rare cases’.

2. After the remand of the matter to the Sessions Court, no fresh material was brought on record by the appellant on the question of sentence. Learned Sessions Judge by judgment dated 10th Oct, 1995 held that this was a pre-medidated cold blooded murder, and considering the nature and gravity of the offence, it would come within the ambit of ‘rarest of rare cases’, and death sentence was imposed on the appellant. Thus the matter has again come up in appeal challenging the sentence.

3. A brief history of the facts leading to the conviction of the appellant may be of use to decide the question of death sentence. The appellant was a teenaged boy of 19 years at the time of commission of the crime. The appellant had an infected wound and he went to a private hospital for treatment. The three deceased woman were working as Nursing Assistants/Pharmacists in that hospital during the relevant time. Appellant was in the hospital for some time and he was discharged. He had a complaint that he was discharged before his wound got healed and that he was forced to pay Rs. 300/- to the hospital authorities without there being a proper cure for his illness. On the fateful day, he went to the hospital and trespassed into the laboratory room where these three women were doing work and bolted the room from inside. He demanded Rs. 300/- from these woman and this did not invoke any response from them and the finding of the Sessions Judge which was confirmed by a Division Bench of this Court is that the appellant incessantly stabbed these women and thereby caused fatal injuries on them. The appellant caused some self-inflicted injuries, possibly in a bid to commit suicide.

4. The appellant’s father is a pan shop owner. He has got 25 cents of land in his possession, but he has not obtained any title deed for this property. Appellant is the only son of his parents and he has two sisters. One has already been given in marriage. The appellant has studied up to 10th standard. The family background of the appellant shows that he is from a poor strata of society.

5. Reference was made to various decisions of the Supreme Court. The decision regarding sentence turns mainly on the facts and circumstances of each case. Even the mitigating circumstances and the aggravating circumstances assume its own colour and shade based on the particular facts of that case. Suresh v. State of U.P., AIR 1981 SC 1122 : (1981 Cri LJ 746) is a case relating to an accused who was 21 years old at the time of commission of the crime. He was a servant in a house and he caused death of one of the sons of his master and caused injury to another son. He was sentenced to death by the Sessions Court which was confirmed by the High Court. The Supreme Court held that, having regard to the fact that the accused was 21 years of age on the date of the offence and very probably, a sudden impulse of sex or theft made him momentarily insensible, that immediately after the crime, the accused was found sitting in the chowk of the house crying bitterly, having achieved his purpose, he did not even try to run away which he could easily have done, the sentence of death was liable to be altered to one of life imprisonment.

6. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) the constitutional validity of death sentence was considered and held that it is not violative of Arts. 19 or 21 of the Constitution. In an illuminating judgment, the Supreme Court held that (Para 207).

“There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. It cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency – a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evenmore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

7. In another decision reported in Amruta v. State of Maharashtra, AIR 1983 SC 629 : (1983 Cri LJ 1057), the appellant was convicted for the murder of his wife and daughter. The Sessions Court sentenced him to death and it was confirmed by the High Court but the Supreme Court altered the sentence to life imprisonment and while doing, so observed that (Para 3) :

“……… but we do know that accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. He was apparently inclined to brood over the wrong suspected by him to have been done to him. While no one one can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs. After considering all the circumstances, we do not think that there are sufficient grounds for departing from the rule of normal punishment and imposing the sentence of death. We, therefore, allow the appeal set aside the sentence of death and substitute the sentence of imprisonment for life. The conviction for murder is confirmed.”

8. In another case reported in Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466) it was observed that (Para 12)

“Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only ………..”

The Court further added that,

“Where in a case of murder the material for choice of sentence was scanty and motive for the crime was obscure and the killings were not for gain ……. was not sufficient to bring a case within the category of ‘rarest of rare cases.’.”

9. In the instant case, one of the most important mitigating circumstances is that the appellant was aged 19 years at the time of the incident. There is also some evidence to indicate that he was under some psychic disorder. Two doctors were examined as defence witness to prove that the appellant was under the influence of some neurotic disability. These witnesses were examined in an attempt to prove the general defence of insanity. Eventhough that plea was turned down by the Court, the evidence given by these witnesses gives some indication regarding the mental state of the appellant during the relevant period. The appellant had no close acquaintance with any of these deceased woman. The evidence in this case indicates that the appellant had demanded Rs. 300/- from them. This amount according to the appellant was paid by him to the hospital for his treatment. It is clear that the appellant came to the place of occurrence with a sharp edged weapon and it shows his criminal intention. But from the facts and circumstances of the case, it cannot be said that there was any previous enmity on the part of the appellant against these women and the murder was cold-blooded. It is also not possible to assume that this was a murder for gain. Nevertheless, the act perpetrated by the appellant was cruel and inhuman.

10. Having given our anxious consideration to the entire facts and circumstances and the manner in which the crime was committed, we do not think that this is a fit case where the Sessions Judge should have altered the sentence of life imprisonment which was hanging over him for a period of four years. Therefore, we are unable to accept the view taken by the learned Sessions Judge that, this is one of the “rarest of rare cases” and the appellant should be sentenced to death. Hence we commute the sentence of death imposed on the appellant to that of life imprisonment.

We allow the criminal appeal and dispose of the R.T. No. 1 of 1995 as stated above.

Appeal allowed.

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