Irresistible Impulse v. Provocation in Homicide

(M. Marcus B.A., M.L., Advocate, Kottayam)

The Law relating to Homicide in India looks at it from the subjective point of view while the English Law views it objectively. It is well known that every Homicide is Murder as per English L aw unless circumstances mitigating it to Manslaughter are proved, while the Indian Law treats the killing of human being by the accused when such killing is effected with certain mental conditions as prima facie Culpable Homicide which is akin to Manslaughter under English Law. To find a verdict of murder in Indian Law the killing of the human being should have been done under such circumstances so as to bring the case outside the ambit of the exceptions to S. 300 IPC.

Exception I to S. 300 IPC. makes provision for the cases in which an accused who has killed his victim under grave and sudden provocation, which is viewed with some leniency and the accused is found guilty of the offence of Culpable Homicide, not amounting to Murder and saves him from the extreme penalty of Law, ie. death sentence. This is done on the ground that when man is under the grip of grave and sudden provocation and consequently he loses his power of self control and kills his victim, the law should not attribute to him more mens rea than he had. This is an instance of the working of the principle that ‘Justice should be tempered with mercy’.

There is a Latin proverb ‘Ira Furor Brevis Est’ which means Anger is short Madness

We find in certain text books on Criminal Law of India this question of provocation treated at if it is a case of Irrestible Impulse.

It is true that irresistable impulse as a defence in Homicide is not admitted in India or in England. But in America there are courts which do admit such a plea even though it is a point on which the courts in America maintain difference of opinion The reason why irresistible impulse is not admitted as a defence in India and England is that it is difficult to distinguish between an impulse that is  irresistible’ and one that is ‘not resisted’. Literature on irresistible impulse informs us that the accused when he does his act under such impluse is fully conscious of what he is about but he is compelled to accomplish the deed against his real will by the force of ‘Irresistiable Impulse’. It is here that we should appreciate the distinction between a case of sudden provocation and that of irre¬sistible impulse.

The focus of our enquiry should be actually directed to this point. It is worthwhile to note the following observation by Oppenhiemer in his ‘Criminal Responsibility of Lunatcis’at page 175: ‘Impulse in truth is the outcome of a ‘ hidden delusion’. On page 176 he says: ‘If an impulse can be resisted it makes no difference whether it owes it to disease or not since the object of law is to control the evil impulse’. This brings forth the quality of the impulse. We are at once brought to the question whether the ‘impulse’ known to law as irresistible does admit of any control. This is the spot at which currents of judicial observations diverge. The learned author further explains on page 183 of the said work: Irresistible Impulse may co-exist with the full possession of reason’. He says, ‘It is true that his (accused’s) intellect being clear, he appreciates the nature and quality of his acts but only after it has been done’. The words’ ‘but only after brings forth the real situation of the offender The law on Insanity as far as IPC is concerned requires that the accused should not have known the nature and quality of the act or that it was wrong or contrary to law, “at the time of the act”.

In the case of criminal activity under provocation the accused though is said to have lost his power of self control, does his act more or less on the lines which he had in his mind prior” to the provocation; that is why the law rightly observes that ‘ungovernable fury’ is not irresistible impulse. The core concept of provocation law is that the resentment by the accused ‘should bear a reasonable proportion to the provocation received’. This aspect of the law is historically traceable to the right of private defence. “History of Criminal Law of England by Stephen”. This statement means that the accused under provocation is att¬ributed the capacity to modulate his act, which presupposes reasonable mental faculty. This aspect is specifically hinted in Exception 1 to S. 300 IPC. when it speaks of the accused’s losing ‘power of self control’. Power of self control is not synonymous to reason. A man who loses self control may still be in possession of his reason and in a case where a man has lost his reason the question of ‘self control’ does not arise. The point is that in the case of provocation the intention of the accused does not travel to the entire area of consequences of his criminal act. It is in the area of these exceeded consequences that the law makes its condescension to punish the deed with less severity having regard to the frailty of human nature.

The case of irresistible impulse is really a different thing. Irresistible impulse in strict sense should be the product of an unsound mind whether the unsound¬ness of mind be patent or past and lying dormant. This is what Prof: Weihoffen has observed in his study of Mental Disease and Criminal Responsibility. Once we find that irresistible impulse can take its offshoot only from an unsound mind, it will be missing the mark if we treat H at par with act under grave and” sudden provocation. It may be further pointed out that in the case of irresistible impulse the question of ‘cooling of the mind’ is outside the consideration while the law relating to provocation reserves a place for it as a barometre to measure the mens rea of the accused. The aspect of ‘smarting under provocation’ is also in-applicable to the case of irresistible impulse in the strict sense In the case of R v. Alexander cited in Russel on Crimes Vol. 1, 1954 edition the learned judge observes ‘when a man is not insane but intellectually deficient the jury should consider what amount of provocation would justify i$i returning a verdict of Manslaughter...... There is no authority for such preposition and this court cannot make Laws. It is the function of the Parliament’. This statement by the learned judge is sufficiently indicative of the complexity which besets the law on provocation which difficulty is augmented by the lack of study and research in the medical field touching the aspect.

The present trend in Criminal Jurisprudence is towards ‘Individualisation of punishment’ and I think that Homicide under provocation offers a suitable ground to reach the goal, especially so when provocation and irresistible impulse may be intertwined in a case which is not improbable.

Individualisation of punishment does not mean the weakening of law but the shaping of punishment in such a way that the Criminal Law may not fall into disrepute. This is the opinion of Prof. Sallielas, a champion of the cause of ‘Individualisation of punishment,’ The same note is struck by Tarde in his ‘Penal Philosophy’ when he says ‘in former days Law bade men study justice but nowadays it is justice study man.’ The task of fitting the punishment to the crime has been an onerous one and criminologists are at work on this problem. Barnes and Teeters in their ‘New Horizons of Criminolgy’ observe that excessive and unwanted punishment of a convict arouses sympathy towards him from the public which cuts at the root of the concept of punishment. In People v. Caruso: 246 NY. 473 of New York we find a case in which provocation received which was subjected to sorrowful brooding resulting in the killing of the deceased by the accused where the learned judge in appeal reversed conviction and ordered retrial thinking that only second degree murder might have been committed: ‘In¬troduction to Criminal Justice by Orvill c. Synder’ P. 631. ‘Medical Jurisprudence for India’ by Dr. Waddell and Lyon informs us that an impulse is the terminal portion of a mental disturbance.

We are now on the threshold of a period when revision of IPC. is con¬templated and I feel that scholars in Law and medicine should work hand ia hand to effect a fractional crystallisation of Irresistible Impulse and provocation from the apparently inseperable mass of legal literature so that punishment shall have a real purpose, and law made certain lest it should over-tax the judicial brains resulting in hasty and disproportionate sentence which runs against individulisation of punishment.

The March of Time

(T. G. John, Advocate, Trichur)

"Ring out the old, Ring in the new,

Ring, happy bell's, across the snow;

The year is going, let him go;

Ring out the false, ring in the true,

Ring out a slowly dying cause

And ancient forms of party strife,

Ring in the nobler modes of life,

With sweeter manners, purer laws".

                                                        Lord TENNYSON

From the exalted position of a scoundrel, the Indian politician has further degeneated into a double-crossing blackmailer. He still carries the junk of politics on his head obviously for sale. His love of defection has made his activities more nostalgic than that of a 'swine'. But all of them are vociferous in asserting in unison that there is nothing extraordinary in their defection misadventures since it is consistent with the nonalignment foreign policy of India! To quit a party when its fortunes are diminished has become the creed of the Indian politician.

Elsewhere it is not always considered so. In the view of many Americans Richard Nixon brought disrepute to the Republican party. Its members were shocked and bewildered by the Watergate revelations. But there was no exodus of Republican politicians to the Democratic party. Mr. Nixon's sins did not overnight transform the Republican party into a diseased and dying camp that had to be vacated. Nor did Republicans seek to float to office on the Democratic tide.

But what is happening here? Loyalty and continuity are values that have been periodically smashed in the long story of our motherland Dynasties, organisations, and political parties have glowed for a time and burst. Governments are toppled and headlines made. But does that make history? Some name plates outside Government offices and some details in the telephone directories do alter, but the contours of our society and the privations of the needy remain as they were.

The legislatures should be freed from the clutches of such pouchy weathercocks who style as politicians and then only we can breathe a whiff of pure air with purer laws.

A Patron Saint For Criminals!

(T.G. John, Advocate, Trichur)

The following is the true life story of one of the most perverted sadistic killers of the last century-Peter Kurten, otherwise known as the Wolf of Dus-seldorf. Much of the information we have about Kurten, we owe entirely to the , researches made by Dr. Karl Berg who came to know the criminal well before his execution and who was also a witness at the trial of Kurten which opened on 13th of April, 1931 in Germany before a Bench of three Judges.

Peter Kurten was born in Koln-Kulheim in Germany in 1883, the son of a moulder, a violent and boastful man, given to drunkenness. Kurten was the third of thirteen children. The family of fifteen was very poor and lived for a time in a single room. The environment was heavily charged with sex. Accord­ing to Kurten himself all his sisters were over-sexed and one made sexual advances to him. Kurten was apparently not interested in her, but he attempted incest with another sister-a sister whom his father attempted to rape and on whose account the moulder served a term in prison. Kurten senior was in the habit of forcing his wife to have intercourse when he came home drunk, and bur hero was often witnessing his mother being raped. He ran away from home at the aae of eight, but returned shortly. When Kurten was twelve, all of them moved to Dusseldorf. But according to his own confession, he had already com­mitted his first murder.

In November, 1899, according to Kurten’s own account, he committed his first adult murder by way of strangling a girl while having sexual intercourse with her. After undergoing brief prison sentences for various thefts, he was released from prison in 1912 and the-next year he committed a full-fledged sexual murder. He had become a specialist in robbing business premises. He entered a pub in Wolfstrasse, on an evening. The major members of the family who were running the pub, were out at a fair. In one of the bed-rooms he found 13 year old Christine Klein asleep. He strangled her, cut her throat with a knife and penetrated her sexual organs with his fingers. He dropped a handkerchief with his initials on it-P.K. But it happened that the father of the victim was called PeterKlein, and his brother Otto had quarrelled with him and threatened to do something that Peter would remember all his life. Otto Klein was arrested and tried but was released for lack of evidence. A few weeks after this crime Kurten was again about to attack a sleeping girl when some­one woke up and frightened him off. He also attacked an unknown man and unknown woman with a hatchet, securing sexual orgasms by knocking them unconscious and seeing their blood!

The year 1929 began with six more cases of arson of barns and stacks. Then on 3rd February, one Fran Kuhn was walking home late at night when she was suddenly attacked by a man with a knife. She received twenty four stab-wounds. A few days later on 13th February, a 45 year-old mechanic named Scheer was found dead in the roadway in Flinghern; he had been drunk when attacked and had been stabbed twenty times. On 9th March the body of a 8  year-old child Rose Chliger was found lying behind a fence on a building site. She had been stabbed thirteen times:

In September of that year, Kurten attacked three more girls and threw one of them into the river after his attempted strangulation. But these events caused little sensation in comparison with the next murder which occurred in late September. Another servant girl called Ida Renter, set out for her Sunday afternoon walk and never returned; the next day, she was found in a field in Rhine Meadows. Her head had been battered with a heavy instrument and her hand-bag and knickers were missing; she was found in a position that indicated sexual assault.

On 7th November, a 5 year-old child, Gertrude Albermann was missing from her home. Two days later her body was found near a factory yard, among nettles and brick rubble. She had been strangled and stabbed thirty six times.

The episode that led to Kurten’s arrest took place on 14th May, 1929. A servant girl named Maria Budlick-who according to Kurten, was ugly and bow-legged-came from Cologne to Dusseldorf looking for a job. The woman who was due to meet her at the Station failed to appear, and she was picked up by a man who attempted to persuade her to go into a park. Remembering stories of the monster, she refused. He persisted and while she was arguing with him, a pleasant soft-spoken man came up and turned him away. The soft-spoken man asked the woman whether he could be of any assistance to her. Maria willingly accepted the new friend’s offer of refreshment in his home at 71 Mettmannestrasse. Here Kurten-the soft spoken-man-gave her a glass of milk and some bread and ham and offered to take her to a hostel. As soon as they were alone Kurten tried to have sexual intercourse with her standing up, at the same time seizing her throat. Then he released her, and asked if she remembered where he lived. She said no, so he left her alone.

Later Maria wrote about her midnight adventure, in a half joking vein to a woman who had met her on the train. The letter went to the wrong woman, since the name was mis-spelled and the woman who opened it and read it handed it to the police. The police traced the letter to Maria Budlick and from there to Kurten. Peter Kurten was finally arrested.

Kurten made a full confession of all murders. Professor Karl Berg, the psychiatrist was introduced to Kurten who remarked that Kurten was an exceptionally intelligent and truthful man. Some of the things which Kurten revealed to him were shocking. Kurten revealed to Berg a curious aspect of his sadism-an element of necrophilia. In one case known Hahn case, Kurten had sexually assaulted his victim both annally and vaginally, leaves and earthmould were found in the anus of the naked dead body. Kurten admitted how, after killing her, he had buried her roughly. Later he decided to alter the location of the grave; he also had an idea that it would be exciting to crucify her body on two trees and leave it to be found. However the body was too heavy; nevertheless Kurten changed the location of the grave and admitted to kissing and fondling the victim when he had dug her up. He returned often to the site of the grave and masturbated on it!

Kurten’s trial opened on 13th of April, 1931. In accordance with the German custom, it took place in front of three judges. Kurten’s counsel was Dr. Wehner, a young lawyer. The prosecution was led by the Public Prose­cutor, Dr. Jansen. Dr. Jansen requested several times that the press and the public should be excluded But was not allowed Prefessor Berg and Sioli gave evidence for the prosecution, while Professor Rather gave evidence for the defence. The defence was insanity at the times of the murders. The case closed on 23rd of April. The jury went out for an hour and a half and Kurten was sentenced to death nine times for murder.

It is indicative of the extreme liberalism in Germany in the early 1930’s that there was something of a storm at the death penalty on Kurten, and the German Humanitarian League protested. Kurten appealed but the appeal was rejected.

Kurten was executed at six o’ clock on the morning of 2nd of July 1931. He enjoyed his last meal-of Weiner Schnitzel, Chips and white wine-so much that he asked for it again. He told Berg that his one hope was that he would hear the sound of his own blood running into the basket which would give him intense pleasure. He also admitted to the psychiatrist to wanting to throttle Berg’s stenographer because of her slim white throat! He was gullotined, and seemed cheerful and unconcerned to the last.

On apples, silicone and lord byron

(T. G. John, Advocote, Trichur)

With one apple in hand, and exhibiting some voluptuous parts of her body, Eve (Garden of Eden fame) robbed mankind of immortality. With a thousand varieties of fruits now available in the market (including the Kulu apples which you can get by V. P. P.) and all these mini-skirts, mini-blouses and mini-whatnots, God alone knows what she is going to rob mankind in future!

When Carol Doda started her life as a stripper, her professional attract­ion to the audience was just that of any other modest girl because she had only a 36 in-worth of upper equipment. And then she went to a doctor and a course of silicone treatment-the latest drug to push out and inflate flat bosoms-made her an overnight sensation. With 44 inches of bustline, her inflated bosom struck newspaper headlines. She broke box office records in almost every top American stripclub and the first audience to goggle at her 44 inches superstructure consisted of hundreds of doctors. She became a medical curiosity. The whole of America became Silicone conscious. Women rushed to doctors’ clinics and many doctors were glad to provide it. The course of treatment lasted from a few weeks to six months and the cost of enlarging a bust line was very heavy.

Trouble started soon. At first most surgeons who undertook the treatment were reputable. But later qualified men withdrew from the field and unqualified people took the field. The Silicone injection became a controversial matter. The rush of flat chested shop-girls who wanted jobs as Cocktail waitresses still continued. Unqualified practitioners began to use industrial-grade Silicone. This kind of Silicone was not purified and foreign particles including metal were contained in it. The Administration stepped in and banned Silicone injection and they attempted to stop it by seizing supplies of Silicone. The whole matter has now come up in a legal wrangle. If Silicone is introduced into the body with a hypodermic syringe, the Administration consider it to be drug. But some doctors make an incision and implant the Silicone and that is considered to be legal.

Last year the Administration brought a legal action against Dow Corning, the only manufacturers of medical Silicone in America. The prose­cutors claim that unlike Miss Doda some girls have found the Silicone treatment harmful. One Casino girl, they say, was made temporarily blind. The result of the legal action is being awaited.

                                               *                                                *                                                                       *                                                                *

England-January 1765. Byron, the great-uncle of the celebrated poet Lord Byron got into an argument with a friend, Mr. Chaworth, in the Star and Garter Tavern, in Pall Mall. The argument was about the amount of game on their estates. The argument was dropped and the rest of the company assumed it was forgotten. But as everyone was leaving later in the evening, the two men met on the stairs and continued the argument and Byron invited Chaworth into a small room lit by a candle. As Chaworth started to close the door, Byron drew his sword and ordered Chaworth to defend himself. Chaworth did so and a few moments later was run through, the sword coming out on the other side of him.

Byron was tried in the House of Lords. His account of the crime laid half the blame on Chaworth’s doorstep; but witnesses disagreed. The trial took place on 16th and 17th of April, 1765. Byron was convicted of manslaughter, but when the Lord High Steward asked if he had any reason to give why the sentence for manslaughter should not be passed, Byron claimed ‘benefit of clergy’ and so escaped scotfree! Byron, it seemed, was a clergy-man in the making.

It is worth commenting that the great poet Lord Byron later fell in love with the great niece of Mr. Chaworth, Mary Chaworth; but on account of the blood feud Mary preferred to marry another man.

S.27 of the evidence act & the ruling in shivaji’s case

(X.P. Devassy, Advocate,Trichur)

In Narayana Pillai Vasudevan Pillai and another v. The State of Kerala, reported in 1968 Cr. Law Journal at page 1362, a Division Bench of the Kerala High Court held that a knife (M. O. I) recovered from Pw. 13 in that case to whom it was given by Pw. 7, who took it from the bank of a temple tank, is admissible in evidence as a relevant fact under S. 27 of the Evidence Act. The correctness of the proposition of law is open to serious doubt. For holding so, the learned Judge Issac J., with whom Justice Raghavan concurred, relied on cases reported in AIR. 1941 Madras, 290 and 1919 Lahore 184. Following these two rulings, the learned Judge observed in para 20 of the Judgment: What is made admissible in evidence by this section is so much of the information received from an accused person by a police officer as relates distinctly to any fact dis­covered in consequence of the said information. The relevancy of the said informa­tion and of the fact discovered is governed by other provisions of the Evidence Act’’. (May be Ss. 3 & 5 of the Evidence Act). Now, in this case, the fact discovered is the knife M. O. 1 and if it was discovered consequent on any information received from the 1st accused, so much of the information which distinctly relates to its discovery is admissible in evidence”. The two rulings relied on by the learned Judge also follows the same line of reasoning. This view will be perfectly correct, if the fact discovered in S. 27 of the Evidence Act relates to the material object discovered or produced which is of an incriminating nature. It is submitted that the fact discovered in S. 27 does not relate to the object produced or object discovered. The divergence of the judicial’ opinion regard­ing this matter prevalent in Indian High Courts was set at rest by the pronounce­ment of the Privy Council in Pullukuri Kotayya v. Emperor(AIR 1947 PC. 67). Sir John Beaumont, speaking for the Board, repelled the arguments raised for the Crown, namely, that the fact discovered or produced and any information which relates distinctly to that fact, can be proved, and observed in para. 10 of the judgment: “On the normal principles of construction, Their Lordships think that the proviso to S.26 added by S.27 should not be held to nullify the substance of the section.” In their Lordships’ view, it is fallacious to treat “the fact discovered’ ’within the section as equivalent to the objects produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or past history or the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife con­cealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of a fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant’’.

In Kottayya’s case,Their Lordships of the Privy Council reversed the rulings reported in ATR. 1937 Madras 618 and approved 1929 Lahore 344 (FB.). In AIR 1941 Madras 290, followed by the Kerala High Court, the” Madras High Court-relied on ATR 1937 Madras 618 for its decision. The decision in AIR 1919 Lahore 184 has not been referred to in 1929 Lahore 344 (FB.). Hence after the Privy Council ruling, 1941 Madras case and 1919 Lahore case ceased to be good law.

It would appear that the Privy Council treated the “fact discovered” in S. 27 of the Evidence Act as meaning “The place from where the incriminating article is produced or discovered”‘ and the knowledge of the accused as to this fact. This knowledge of the accused is treated as relevant under S.27 of the Evidence Act. The knowledge of the place where the incriminating articles are discovered, is attributed to the accused, if, in fact, the discovery was made from the place in pursuance to the information given by the accused person in custody of the police. In the instant case, no incriminating article was recovered from the place where the accused- said that he threw the kni-fe and the recovery was made from a third person. How the said recovery could be brought under S.27 of the Evidence Act as relevant is open to serious doubt in view of the interpretation of S. 27 by the Privy Council. The recovery was from P. W, 13 and no knowledge of this fact could be attributed to the accused. The relevant fact is that an incriminating article is concealed in such and such a place, which was till then unknown to the police officer investigating the crime and the police officer was enabled to recover the incriminating article from the place either pointed out by the accused or informed of by him, thereby affording a guarantee of truth for his statement. If the police are already in possession of the information from some other source regarding the place of concealment of the incriminating article, then a further information of the same nature eman­ating from the accused person is irrelevant under the section and not provable (Vide AIR. 1956 Supreme Court, 217 at page 223, Rajakhima v. State of Sourashtra). It is clear from this statement of the law by the Supreme Court, that it is the knowledge of the place of concealment, thereto unknown to the police, that is imparted by the accused person to the police which is relevant under the Section and not the material object as such.

The T-C. High Court approved and accepted the principles laid down in the Privy Council case in a number of rulings, the 1st of which appears in 1952 KLT. 216, where Justice Koshi (as he then was) observed in para 4 of the judg­ment thus: “We take the liberty to tell sessions judges and public prosecutors that \he decision of the Privy Council in Pullukuri Kottayya v. Emperor (AIR. 1947 PC. 67) will well repay perusal” and then quoted the decision in extenso. The view was, again reiterated in 1954 KLT 737 also. The present ruling of the division bench of the Kerala High Court is likely to embarass the lower judici­ary, when they are called upon to decide the applicability of S. 27. With due deference to the learned judges, who rendered the judgment, it is humbly submitted that the view of the Bench appears to be incorrect and deserves reconsideration by a Full Bench.