b§3ONFIDENTI :11. LD_. 91 x_x}L_v --'"""--_' 1,863. LAW COMMISSION OE INDIA THI RTY-FIFTH REPORT VOLUME ll (CAPITAL PUNISHMENT) SEPTEMBER, 1957 GOVERNMENT OF INDIA 9 MINISTRY OF LAW REPORT ON CAPITAL PUNISHMENT EXPLANATION OF ABBREVIATION R. C. Report Report of the Royal Commission on Capital Punishment (I949-I953). Cmd. 8932. APPENDICES APPENDIX I.---Questionnair issued by the Law Commission on Capital Punishment. . . . . ' APPENDIX II.---Analysis of certain illustrative cases in relation to the sentence imposed for murder. , . . . . . APPENDIX III.---Table of Abolitionist Countries o1...States, with date of abolition (Arranged alphabetically) . . . APPENDIX IV.---Country-wise statement of abolition or retention (Arranged alphabetically) . . . . . APPENDIX V.--Capital offences in various countries APPENDIX VI.--Position regarding Appeals from Death in certain countries _ Sentences, APPENDIX VII.----Provisions regarding pregnant women and death sen- tence----position in certain other countries . APPENDIX VIII.---Age and Capital Punishment--_position in certain States of India and in certain other countrie , . APPENDIX IX.---Capital Crimes in some countries of the British Commonwealth (Detailed statement) . . . . APPENDIX X.--CountI-ies in which death sentence is mandatory for certain oﬁences . . . . . APPENDIX XI .--EXtractS from the Burmese Penal Code, and Analysis of the Burma provisions . . . . . . APPENDIX XII.------Ceylon Acts regarding Capital Punishment .  APPENDIX XIV.--Canadian Act of 1961 APPENDIX XV.---Table analysing effect of restoration---Abolition countries APPENDIX XVI.-Table analysing effect of non-restoration (Abolition countries). APPENDIX XVII .--Cases of cruel murder , , . , . APPENDIX XVIII.--Cases of appeals under articles 134 and 136 of the Con- stitution relevant to the sentence of death APPENDIX XIX.----Capital crimes in England in the 18th Century APPENDIX XX.---English Law of Treason APPENDIX XXI.--Death penalty in Russia APPENDIX XXII.--Provisions in French Penal Code regarding treason (i) PAGE: 3-82 83-'~84 85-88 88-91 92-94 I04'-105 105-108 I09---IIO III r12--r17 II8--II9 119-121 121-128 I28--I3o 131-134 134-136 136-166 167--182 183-186 186-188 189-191 (ii) Pmias APPENDIX XXIII.--Capital punishment in Hindu Law (Detailed sub- h¢adsj:.--  I94~--I97 (cf) Principles of punishment . . . . 197-198 (4) Classiﬁcation of 1:-unislunent in Hindu Law . I98-199 Q') isiﬁerent kinds of punishment in Hindu Law . . . . . . 199 (g) Arguments against capital punishment . 200-20: (52) Capital punishment for various crimes 201 202 (i) References from Mann Li} Capital Punishment and Buddhist Rules . 2o2---205 (k) Capital Punishment in Maratha period.) . 2o5----2o8 Arrlnmx XXIV.---Capital Punishment in India during the Muslim per1od--- 208 (2') Introductory . . . . . . 208-2:1 (it) Muslim Law as in force at the advent of the British rule . . . . . . 212----2.21 AIPINDIX XXV.---Capital Punishment under the British rule, but before the enactment of the Indian Penal Code . . 22-23 I APPENDIX XXVI.----List of Capital offences under Bombay Regulation XIV of 1827, and provisions therein regarding offences which are new capital . . 231-233 APPENDIX XXVII.---Recommendations of the Indian Law Commis- sioners . . . . . 234--247 APPENDIX XXVIII.---Amendments relevant to Capital Punishment, after the passing of the Indian Penal Code (1860) . 247 APPENDIX XXIX.-----INDIA----proportion of murders to one million in~ habitants (1953-4962) . . . . . 248 APPENDIX XXX.- INDIA--McrCy petitions--percentage of petitions in which death sentence was commuted . . . 248-249 APPENDIX XXXL-'-SUPEREME CoUn'r--Statement of criminal appeals and special leave petitions involving capital sentence: (1957 to 30th September, 1963 . . . 250-----254 APPINDIX XXXII.---H:oH_ CoUR'rS_--Statement relating to cases involving Capital punishment (1957 to 1962) . . . 255-274 (iii) APPENDIX XXXIII.---INDIA--nu.mber of murder cases (1953-1962), reported to the police . . . . . APPINDIX XXXIV.---INn1A--State-wise ﬁgures of homicide cases (with ﬁgures of two notoriously criminal districts) (1953 to 1962) APPENDIX XXXV.----INDIA----Tab1e showing noticeable increase in mur- ders in certain States and cities (1958-1962) - APPENDIX XXXVI.---INDIA---Graph of murder cases (1953 to 1962) APPENDIX XXXVII.--INDIA--Detai1ed Analysis of Murders in India (1951-1961)- (1') Causes of Murders (it) Means employed to commit murder APPENDIX XXXVIII.--IND1A--Number of kidnapping and abduction cases (1953-1962) . . . . APPENDIX XXXIX.--IND1A--Graph of kidnapping cases (1953 to 1962) . XL.---IN1:>IA---Number of juvenile offenders apprehended APPENDIX for murder etc. (1958 to 1962) . . . APPENDIX XLI.--Abolitionist and retentionist countries, and rates of homicide, 1962 (Alphabetically arranged) APPENDIX XLII.---Country-wise rates of homicide, I962 (Countries arranged continent-wise) . . . . APPENDIX XLIII.---INn1A--Ana.lysis of sentences passed by Sessions Judges in capital cases (in certain States) (based on selected decisions) . . . . APPENDIX XLIV.---Recommendations for amendments in certain Central Acts PAGES 275 276----3I>' 3 I9 320 32I--343 344 345 346 347-35 I 352-354 355-353 364 APPENDIX I QUESTIONNAIRE rssurzn BY rm: LAW COMMISSION on CAP-ITAL PUNISHMENT 1. Are you in favour of retention or abolition of capital punishment? 2. (a) What, in your opinion, is the object of capital punishment? Does the existing law sufficiently achieve that object? (b) In particular, do you think that the sentence of death acts as a deterrent? 3. (a) Would you like to retain the sentence of death for all or any of the offences under the Indian Penal Code which are at present punishable with deathl? (b) Are there any other oﬁiences under the Indian Penal Code or any other law which, in your opinion, should be punishable with death? 4. The relevant provisions in the Indian Penal Code vest in most cases a discretion in the court to award the sentence of death or the lesser sentence of imprisonment for life. Is the vesting of such discretion necessary and are the provisions conferring such discretion working satisfactorily? If not, have you any suggestions to make in this behalf? 5. If the vesting of such discretion is necessary, what should be the considerations which should weigh with the court in awarding the lesser punishment of imprisonment for life? Is it possible to codify such considerations? 6. (a) Is it possible to divide murders into different categories for the purpose of regulating the punishment for murder? 1. Th: relevant sections of the Indian Penal Code and the oﬁences coicerned are as fol1ows:--- Section 121-Waging war against the Government. Section 132-Abetment of mutiny by a member of the armed forces, Section 194-2nd paragraph--False evidence leadirg to conviction of innotent person and his execution. Section 302---Murder. Section 303---Murder by a life convfct.  S::t'o1 31'-. -Xttemfit to mwrcier by life convict. Star" I Dicoity with murder. 2 (b) Is it possible to divide murders into two cate- gories---- (i) murders punishable with death; (ii) murders not punishable with death. If so, what kinds of murders would you include in cate- gory (i)? « 7. (a) Are you in favour of the view that the normal sentence for murder should be imprisonment for life, but in aggravating circumstances the court may award the sentence of death? (b) If so, what, in your opinion, should be the aggra- vating circumstances? 8. Should there be a provision in the law requiring the court to state its reasons for imposing a sentence of death or the lesser punishment of imprisonment for life? 9. Do. you consider that even if the sentence of death is retained, certain classes of persons should not be punished with death, e.g., children below a particular age, women, etc.? What classes of persons should, in your opinion, be excluded from the sentence of death? 10. At present the Supreme Court has limited jurisdic- tion when a High Court has passed, conﬁrmed or upheld in appeal a sentence of death (article 134 of the Constitution and section 411A, Criminal Procedure Code). Are you in favour of enlarging the powers of the Supreme Court so that an appeal shall lie to the Supreme Court as a matter of right in all cases in which a sentence of death has been passed or conﬁrmed or upheld by the High Court? 11. (a) Have you any suggestions to make with res- pect to the power of the President and the Governor to grant pardon, reprieve, respite or remission in respect of the punishment of death or to suspend, remit or commute the sentence of death under articles 72 and 161 of the Constitution and the power of the Government to suspend, remit or commute such sentence under sections 401-402, Criminal Procedure Code? (b) What, in your opinion, should be the prjnciples which should guide and the procedure which should be followed in the exercise of these powers? 12. At present, the sentence of death is carried out by hanging. Have you any suggestions to make.with respect to the manner in which a sentence of deathrr ' "carried out? 3 APPENDIX II ANALYSIS OF CERTAIN ILLUSTRATIVE CASES IN RELATION TO THE SENTENCE IMPOSED FOR MURDER NOTE:----ThiS analysis is not intended to discuss all cases.         Nawab (Lahore) Nawab Singh (S.C.) Nilonal Jiban (Cal.) Nisa Stree (S.C.) Palaniswami Goundan (Madras) Palani Mopan (Madras) Pandurang (S.C.) Pandurang (Bom.) . Peethambaran (Kerala) Piare Dusadh (F.C.) Pgan Das (S.C.) Preman (Lahore) Prem Narain (A11.) Puttawwa (Mysore) Raiagopalan (F.C.) Ramautar Singh (Patna) . Ram Singh (Lahore) Raxin Chandra (S.C.) Ram Nath Lucknow (Oudh) . Rangappa (Madras) Rishi Deo (S.C.) Sabir (A1l.) Satyavir (Al1.) Seraiuddin (All.) Shaﬁ Khan (Patna) Shankar (Bom.) . Shﬁanna (Mysore) . . Shivruddrappa (Bom.) Sunder (All.) Sunder Singh (S.C.) Sunder Lal (S.C.) . , ._.--.._,_.______..._. Case No. 75 45 7 49A 62 70 I0 Name of the Case C215: No. Iai Ram (Bombay) 9'; Talian (Lahore) 5; Tara Chand (S.C.) 24 Thannoo (AIL) . . . . . 94 Thorhan (Madras) . 82 Tiri (Rangoon) 42 T0121 Ram (Lahore) 36 (Uniri) Kannan (Kerala) 98 Ulia (Orissa) . 60 Vadivelu (S.C.) I7 Venkalu (S.C.) I4 'Viiayan (T ravancore-Cochin) 64 Wazir Singh (S.C.) 15 Subject-wise Index to Analysis of cases Topic Name Case No. "Acquittal-- Tara Chand (S.C.) . 24 in article 134 Admission by Counsel Rangappa (Madras) 5o Advocate murder of .  Manirathan (Mad.) 70' Viiayan (T .C.) 54 Gurdev Singh (Lah.) 55 Ramautar (Pan) 3; Aziz Begum (Lah.) _ 52 Dhaulan (Lah.) 4-; Ghulam Jannat (Lah.) 33 Harnamun (Lahore) 39 Natesan (Mad.) L 99 4? Mominuddi (Cal.) 'I'op;c Name Case No. J\ge---(contd) Prern Narain (AIL) 8'3 Nirmal Ixban (Cal.) 49.'! Shivrudxappa (Bom.) 72 Sabfr (AIL) . . . . . 73 Kartar Singh (Lah.) 46 Nawab (L;:h.) 45 Tin' (Rangoon) 42 Age of victim See "Boy Of" Bhagwan Din (Oudh) 41 Age---(O]d age of convict) Sunder (AIL) 88' Appellate Count . . Dalip Singh (S.C.) 3 (Interference in sentence). Approve: , , Aziz Begum (Lah.) 52. Ram Singh (Lah.) . 55 Arson . . . See "Fire" Backward Class . Ramautar (Pat-) 8: Baluchi custom See "Unchastity" "Bodily injury" . . . Thannoo (Al].) 94 (Sect;on 300 thirdly I.P.C.) Boy of 14-Murder of . Kanii (Ra§.) , 67 Boy of 6---Mu1-der of Bhagwandin (Oudh) 41' Brutal murde1'----death sentence Eabu v. State A.I.R. 1965 S.C. 1467 (not normal summarised) Child See Infanticide Circumstantial evidence . Sunder La] (S.C.) 8 Nisa Stree (8.0) 4 Kutuhal (SC) 5 Circumstantial ev;'dence-----no Govindareddy (Mys.) ga ground for lesser senmce Ulla (01-1552) . 6a- Child Witness , . See----The State v. Dukha Bax' A.I.R. I963 Orissa 144 paragraph 29 and Ghasixzm I.L.R. 1962 Cut. 505. College student----Murder by Munirathnam (Ardhra) 76 Com gt s1udent--Su:'cide p2Ct . Dasrath (Pan) 9; Topic I 9 Name Case No. C ommon intention , Common object . . . Constitution----Art 1340) -(a) Article I34(i)(c) . .  See Masaezi v. State A.I.R. I965 S.C. 202 paragrz ph 20 Tara Chard (S.C.) Sunder Singn (S.C.) Njsa Stree (S.C.) See "Dead body" See "Plea of guilty" See "Plea of guilty" Govindaswami (M2d.) Vijayan (T.C.) Pandurang (Bom.) , Moo] Chand (All.) , . "and cases in footnote thereto) Serajuddin (A1l.) Dukari Chandra (Cal.) Dalip Singh \S.C.) (Observation ; Gurdev Singh (Lah.) Satyavir (AIL) Amala Koteshwara Rao (Andhra) See "Mercy" and "R(m"ss,'on" Kashmira Singh (S.C.) Mahabir Singh (Cal.) Ram Nath (Lucknow) (Ovdh) Ram Chandra (S.C.) Bandhu (AIL) , _ Peethambaran (Ker.) 59 24 I1' 66 64 8o 55 6r 4o 84. 89- I01 54' 35 15A' 32 93 .10 Topic Name C?" N°- 'D . . . . . Kal ' s.c. . . . . . 2 ' clay I)aiv§:itI11g(uishe)d in Babu V. State A.I.R. I965 S.C. 1467 Mahabir Singh (Cal.) . . . V . 54 Ram.  Piare Dusadh (F.C.) . . . . 26 ,Despei-ate resentment . .  I0 Distinguished in Babu v. State A.I.R. 1965 .C. 146. Dukari Chandra (Cal.) . . . 40 Mool Chand . . . - 65 ;Differenee of opinion . . See enhancement. (enhancement). ,Difference of opinion (guilt) . Double murder . . . Harnamun (Lah.) . 38 Palaniswami (Mad.) . . . . 62 ;Double murder--by boy of 16 . Govindaswami (Mad') . . . . 66 .Doubt as to guilt . . .  See "Intoxication" . . . 25 D yin; declaration ----completed . Muniappan (S.C.) . . . . .  v .  Enhancement . . .  Enhancement--difTerence of opi- IN re Govindaswami . . . 66 nion among Judges. Foot-note to Nisa Stree (S.C.) . 4 Enhancement-- boy of 16 mur- In re Govindaswami . . . . 66 derer. Enhancement ordered See (i) Nga Ywa A.I.R. I935 Rangoon 49: 66 52. (ii) Tirumaligadu. (I928) I.L.R. 52 Mad. 147, 151. Enhancement (observation that Bansi (All.) . . . 79 re-consideration not possible) Enhancement . Balbir Singh (Pun.) . . . 96 ("No scope for") 'Enmity--Absence of Satyavir (All.) 89 Epileptic ﬁts . V See "Insanity" Error in conviction See Kali (All.) . . . . . 3! Evidence . . . . See "single witness" "dying declaration" "circumstantial" "dead body" etc. Extenuating circumstances . Gurdev Singh (Lah.) 56 (Examples listed). Mool Chand (All.) 6; Fire arms expert Kalu (S.C.) . . I8 Fire--(Setting ﬁre & murders) . Venkalu (S.C.) , :4 Frenzy . . . . See "Insanity" 'Gambling---(Firing on gamblers) Chat_an Das (E.P.) . . . . 59 ;':ain--Murder for . Govindareddy (Mysore) . . go See also Basanta A.I.R. 1959 Orissa 29, 33 (Death sentence for murder of boy of four years). Hireling . Nathu (All.) . . . . . 75 identity of victim .  See "mercy" 12 Topic Name Case No. Impulse . See "Insanity". Indian Penal Code . See "Indian Penal Code" Individual fault or blow . .  Insanity (Delusion) Hazara Singh (Pun.) - 92 Insanity (Epileptic ﬁts) . Tola Ram (Lah.) 35 Insanity and multiple murders . See Multiple Murders. Insanity (Subsequent) Piare Dusadh (F.C.) 26 Indian Penal Code, Section See "Ix_idiv'dual fault" and "Common in- 34. tent-.on". Incllﬂagn Penal Code, Section See "Common object" Inggan Penal Code, Section See "Insanity". Ingisan Penal Code, Section Basdeo (S.C.) 12 Indian Penal Code, Section See "Waging Wax"- I21. 13 1'op,',_- Name Case No. I1i?a1 Penal Cole, Section ze the particular topics. 33:) and Exteptions. Mahabir Singh (Cal). 54 Indian Penal Code, Section See "Dacoity with Murder" 396. Basdev (S.C.) . . . 12 Intoxication Kanji (Raj.) . . . 67 Lapes of time See "Delay" Large nurnber--sentenced to Shaﬁ Khan (Pat.) 39 death. Leniency to others Brii Mohan (S.C.) . I6 Lesser sentence than lifed. See "Mercy" Lunacy . See "Insanity" Mercy-reco,nme ndation for Peethambaran (Ken) (lesser than life) . 93 Aziz Begam (Lah.) (lesser than life) 52 Talian (Lah.) (lesser tnan life) 53 Dhaulan (Lah.) (lesser than life) 47 (Nawab (Lah.) 45 Kartar Singh (Lahore) (lesser than life) 46 Tola Ram (Lahore) (lesser than life) 36 Daulan (Lahore) (lesser than life) 34 Kali (All.) (Error) 31 Foot-notes to Nfsa Szree 'S.C) (lesser than death or We imprisonment) . 4 Ghulam Jannat (Lahore) (lesser tnan life) 33 Kali Charan (Nag.) (lesser than life) 57 Charan Das (Andhra) 59 'Molestation of girl Natesan (Mad.) 99 .Mother---murder of Kannan (Ker.) 98 Motive---Absence of Kanji (Raj.) 67 Ivlotive----Laudable , Kalicharan (Nag) 5-7 Kalawati (S.C.) 2 Multiple murder (of 6 persons) Govinda Rcddy (Mys.) 9o Shanker (B0rn.) 14 Topic Name Case N0. Multiple murde: (of 4 persons)--- Namdeo (Bom.) . . .. . . 74 Multiple murder . . .   See Indian Penal Code. Penitence . . . . Mominuddi Sardar (Cal.) , , G 49 Personal enmity--absence of . Harnamun (Lahore) . . . . 38 Personal gain--absence of . Amru (E.P.) . , , , . _ 58 Plague case . . . . Benoyendro v. Emp. A.I.R. 1936 Cal. 73 Not discussed, Plea of guilty . . . Bhadu (All.) and cases noted thereon , 29 P-:-.i:~0ning . . . .  BaSu--Tanti (Pat.) . . . . . 86» Report, not evidence . .  See "Infanticide--" Eﬁect of child birth and also Foot-notes to Nisa Stree (S.C.) . . . 4' Prev-meditation , _ , Basdev , , . , , _ 12. N .Narayanan . . . I3. viii? (s.c.) . . . ,4 Pre-meditation--absence of .  Balbir Singh (Punjab) . . . . 96- Provocation . . . .   S2 Mumgian (Madras) . . . . 8 ,- S S Topic Name Case Noz- Provocation (contd.) . . Narayanan (S.C.) 13 Public servant---murder of Nirmal Jiban (Cal.) 49A" Public servar1t--(Lambardar-- Mewa (Lahore) SI murder of). Public servant (constable) Shiﬁ Khan (Pat.) 39' --Murder of. Public servant--Murder of Gudder Singh (Punjab) . 53 Sub-Inspector. Rape-at point of gun . . Mian Gul (Lahore) 44' Recommendation for mercy . See "Mercy" Reform---(of convict) . . Bhagwandin (Oudh) 4T Reformatory School . . Ulla (Orissa) 50' Munizathan (Mad.) 75 Remission . . . . See "Mercy" Remissi0n--not equal to Puttawwa (Mys.) 95 acquittal. Second murder by same person Muniyandi (Mad.) 69 Self-Control . . . . See "Provocation". Sentence enhanced . . See "Enhancement". Several persons sentenced . See "Large number". Sexual intercourse--followed Ram Singh (Lah.) . 353 by murder. Sharp Weapon . . . Haﬁzullah (All.) 841 Shocking murder . . . Kashmira (S.C.) 1 Single witness . . . Vadivelu (S.C.) 17' Son acting under father's inﬂu- Mizaji (S.C.) 19' ence. Special leave limited to sentence Wazir Singh (S.C.) 15-' Basdev (S.C.) I2 Sudden ﬁght . . . . Preman (Lah.) 37 Atma Singh (Punjab) 78 Pran Das (S.C.) 6 Same': pct . . . . Dasrath Paswan 91 I6 Topic Name Suicide--Attempted after mur- der. Sxprrior Oﬁ:er's Orders Terrorist Time Trava xcore (Penal Code) Travancore and Cochin . Triple murder Unzlustity-killing for (Baluchi custom). Unlawful assembly Vengeance Waging War . Wicked murder Wife--murder of Witchcraft --Belief in. -as extenuating. Woman, (sentenced to death) Woman--murder by Woman--:nurder of Youth . . . . Natesan (Mad.) . . Charan D23 (East Punjab) . . Nirmal Jiban (Cal.) . . See Delay Kochan Chellayyan Viiayan (Travancore-Cochin) Mahabir Singh (Cal.) Kaivn (Sin:l) Kartar Singh (S.C.) . . Pandurang (Bom.) . . . Hla Auug (Rangoon) Basu Tanti (Patna) . . . Dukari Chandra (Cal.) Iai Ram (Bom.) Hazara Singh (Punjab) . . Ramautar Singh (Patna) . . . . Nisa Stree (S.C.) . and foot-notes thereto. Talian (Lah.) . . . . . Aziz Begum (Lah.) Dhaulan (Lahore) . Ioyaji (Bom.) Daulan (Lahore) Kutuhal (S.C.) See age. Case No, 99 59 49A 6'5 64 54 43 2 I 80 4.3 86 4o 97 92 8 ( 53 52 47 3o 34 17 Case No. 1. Kashanira Singh v. State of Madhya Pradesh A.I.R. 1952 Supreme Court 159-- 1952 S.C.R. 526 (Fazl Ali, B. K. Mukherjea and Bose JJ.) (Judgment by Bose J) The appellant was convicted of the murder of a small boy of 5 years and sentenced to death. On the facts, the Supreme Court allowed the appeal ﬁled with special leave, and acquitted him of the charge of murder and kidnap- ping. He was, however, convicted of an offence under section 201 following Begu v. The King Emperor'. The Court pointed out, that where the murder committed is particularly a cruel and revolting one, it is necessary to examine the evidence with more than ordinary care, lest the shocking nature of the crime might prevent a dis- passionate judicial scrutiny of the facts and law. Case No. 2. Kalawati v. State of Himachal Pradesh 1953, S.C.R. 546 A.I.R. 1953 S.C. 131, 135 (Patanjali Sastri, C. J. Mukerjea, Chandrasekhara Aiyer, Bose and Ghulam Hasan JJ.) (Judgment by Chandrasekhara Aiyar J.). Sentence of death was, in this case, replaced by the sentence of transportation of life, having, regard to the time that had elapsed since the offence and to the fact that the probable motive was one of prevention of cruelty to a helpless women--to a wife who was ill-treated by her husband. (In this case, the husband was murdered by the accused. The husband used to ill--treat his Wife. The accused murdered the husband for protecting her from this cruelty). I. Begu V. The King Emperor, A.I.R. 1925 PC. I30----52 I.A. 191. NOTE :--This does not mean that in every case of delay the sentence must be reduced to imprisonment for life. The death sen- tence may be maintained notwithstanding, delay if the murder is brutal. Babu v. State A.I.R. 1965 S.C. 1467. 3-122 Law. ''1 18 Case No. 3. Dalip Singh V. State of Punjab A.I.R. 1953 S.C. 364, 367, 368 1954 S.C.R. 145 (Mahajan, Bose, and Jagannadhadas JJ.) (Judgment by Bose J .) Death Sentence should ordinarily be imposed for murder. [Section 367 (5), Criminal Procedure Code was not referred to.] But, when the trial judge has imposed the lesser punishment for reasons which are such that a judicial mind could properly act on them, the appellate Court should not interfere with the discretion. In the instant case, the Sessions Judge convicted the appellants under section 302, Indian' Penal Code and sen- tenced them to transportation for life, as it was not possi- ble to determine who inﬂicted the blows which were fatal and who took a lesser part. The case was one in which "no one has been convicted for his own act but is being held vicariously responsible." The Punjab High Court enhanced the sentence to death. The Supreme Court held, that the Sessions Judge had a discretion which had been judicially exercised. The discretion was his, and not the High Court's. Sentence reduced to transportation for lifel. Case No. 4. Nisa Stree V. State of Orissa A.I.R. 1954 S.C. 279. (Not in S.C.R.) (Mahajan, S. R. Das and Bhagwati JJ.) (Judgment by S. R. Das J.) The accused, a woman of 20 years, was convicted of murder on circumstantial evidence. On the date of the occurrence, about an hour before sunset, she was seen proceeding with the deceased in the direction of the scene of occurrence. She came home Without the deceased in the evening, in hurried steps, with her cloth lifted up. The cloth was found to be stained with human blood, and two ornaments of the deceased seen on the person of the deceased when she was going towards the scene of murder, were discovered at her instance from the thatch of her hut. She was convicted of murder (and also under sec- I. for other cases stressing that sentence is a matter of discretion, see Nar Smgh, A.I.R. x954, S.C. 457; 1955 S.C.R. 238 and Bed Raj A.I.R. I955 S.C. 778. 781. 'tion 379 19 ) and sentenced to death. The sentence was con- ﬁrmed by the High Court, which, however, gave certiﬁcate for appeal under article 134 (1) (c). The Supreme Court held, that the circumstantial evi- dence in the case was only consistent with guilt of the accused. The Conviction upheld. murder was coldblooded and out of pure greed. (Question of sentence not speciﬁcally dealt Wlth)1. I. See also--_-- (i) (ii) (ii) (iii) (iv) Karuppal In re., (V) (vi) lvii) Mnai 7,'. Emp., A.I.R. I938 Nag. 318 (1938) 39 Cr.L.J. 405; (Grille and Digby JJ.)----«Case of a woman murdering her husband by Dhatura poisoning. The woman was on terms of intimacy with one and committed murder to get rid of her husband. Death sentence conﬁrmed. Rasammal, In re. A.I.R. 1915 Mad. 82 aged 50 years, had murdered her 5 years old grandson, with a heavy pointed ﬁle. She was sentenced to transportation. On revision, Ayling J. wished to enhance the sentence. Seshgire Aiyar J. disagreed, and considered the lesser sentence as proper owing to her age, and lapse of time. The matter was referred to Oldﬁeld J. who enhanced the sentence to death, holding that sex and age had to be weighed against the other factors of the case, which were, pre-meditated and brutal murder, comm"tted owing to the accused's hatred of her daughter-in--law. I (In this case, a woman Emp. v. Misri (I909) I.L.R. 31 ALI. 592, 593, 598 (Death sen- tence on woman for murder of a girl of I2 years for ornaments conﬁrmed by Richards & Alston JJ.). In re. Thithanchumma. A.I.R. 1941 Mad. 27 (Burn and Mocket JJ.)----Sentence of death on woman of 20 years conﬁrmed. She had murdered a girl of I2 years by strangling, and took, her silver jewels worth Rs. 5/-. As the crime was deliberate and "brutal the sentence was conﬁrmed. Court noted that she was in an advanced stage of pregnancy at the time of murder, and had (since the murder) give birth to a child. But this was a matter for the Government to consider. A.I.R. 1944 Mad. 5o, 51 (Burn and Moekett 1].) -----A woman who had been ill-treated by her husband killed her own two children---~gir1 of ﬁve and boy of two, by throwing them into a well. She also jumped into the well, but managed to get out. The Additional Sessions Judge sentenced her to death, saying that he had no option out to award the extreme penalty. The High Court reduced it to transportation for life, and agre- ed that even that was excessive in the circumstances of the case. Ma Shwe Yi (woman poisoning husband sentenced to death I.L.R. I Rang. 751; A.I.R. I924 Rang. I79. Er)np. v. _7eoly I.L.R. 39 All. 161 (Richards CJ & S.C. Banerji J. . Emp. v. Mt. Har Piari A.I.R. 1926 A 1. 737, 741 (woman cruelly administering poison to husband sentenced to death). 20 Case No. 5. Kutuhal v. State of Bihar A.I.R. 1954, S.C. 720 (Not reported in S.C.R.) (S. R. Das and Bhagwat JJ) (Judgment by Bhagwat J .) The appellant was convicted of the murder of an old woman of 70 years. The woman had died as a result of shock caused by injuries on her chest. The circumstances were such that the only reasonable inference was that the injuries were caused by the appellant. The appellant had an opportunity for the same and also strong motive to do away with the old woman. He was in great hurry to cremate the corpse and to dispose of the dead body. He was convicted under section 302, Indian Penal Code and sentenced to death by the Sessions Judge. The High Court dismissed his appeal and conﬁrmed the sentence. Having regard to these circumstances and to the fact that the appellant did not care to inform the relations of the dead woman, the Supreme Court upheld the conviction. (Sentence was also upheld). 'Case No. 6. Prcm Das V. State A.I.R. 1954 S.C. 36 (Not in S.C.R.) (Kania C. J., Fazl Ali, Patanjali Sastri, Mahajan, B. K. Mukherjee and S. R. Das JJ.) (Judgment by Fazl Ali J.) In this case, which was heard by special leave on appeal from the decision of the High Court at Nagpur, the Supreme Court altered a conviction under section 302, Indian Panel Code into one under section 304. This was a case of sudden quarrel between the accused and the de- ceased, which ensued in free ﬁght between the two parties in which each party assaulted the other with sticks. The accused dealt only one blow on the deceased, which re- sulted in his death. The Sessions judge acquitted the accused, while the High Court on appeal convicted him under section 302, Indian Penal Code and sentenced him to transportation for life. On appeal, the Supreme Court held that this was a case falling under the Fourth Exception to section 300 and therefore. came within the Second Part of section 304. The accused had dealt only one blow, and the High Court's observation that it could not be said that he had not taken under advantage or acted in a cruel manner was not sup- ported by the evidence. (Sentence altered to rigorous imprisonment for ﬁve years). 21 Case No. 7. Nawab Singh v. State of U.P. AIR. 1954, S.C. 278 (Not in S.C.R.) (Mahajan, B. K. Mukerjee and Jagannadhadas JJ.) (Judgment by Mukherjee J.) This was a case of cruel and premeditated murder for which the appellant had been sentenced to death under section 302. The Supreme Court dismissed the appeal filed with special leave. As regards the argument of the appellant that a good deal of time had elapsed since the death sentence was imposed and that it should be com- muted to one for transportation for life, the Supreme Court observed that it was true that in proper cases an in- ordinate delay in the execution of the death sentence may be regarded as a ground for commuting it, but "We desire to point out that this is no rule of law and is a matter primarily for consideration of the local Government. If the Court has to exercise a discretion in such matters, the other facts of each case would have to be taken into consideration." (In the case before the court, there was no extenuating circumstances and the murder was regarded as a cruel and deliberate one, and therefore the court did not order commutation). Case No. 8. Sunder Lal v. State of Madhya Pradesh A.l.R. 1954 S. C. 28 (Not in S.C.R.) (Mahajan and Bhagawati JJ.) (Judgment by latter). There was circumstantial evidence to the effect that the accused and the deceased were seen together at a parti- cular time and that immediately after the murder, the accused went to one B with gold, etc., and then next morn- ing to a goldsmith with gold and silver. The silver was identiﬁed as habitually worn by the deceased. The Sessions Judge acquitted him of the oﬁence under sec- tion 302, Indian Penal Code but convicted him under sec- tions 394 and 323. Accused appealed. Government also appealed against the acquittal in respect of section 302, Indian Penal Code. The High Court conﬁrmed the convic- tion under section 394 and also convicted him under sec- tion 302 (in place of section 323) and sentenced him to death. On appeal to the Supreme Court, the conviction was upheld. Appeal dismissed. (No discussion as to sentence). Case No. 9. Rishi Deo Pande V, State of U.P. A.I.R. 1955 S. C. 331, 333, paragraph 4 (Not in S.C.R.) (S. R. Das, Bhagwati and Imam JJ.) 22 (Judgment by Das J.) The appellant, though he did not inﬂict any blow, yet shared the common intention to kill the deceased and was present on the spot with his lathi. He was convicted under section 302, Indian Penal Code read with section 34 and sentenced to death by the Sessions Judge. On appeal, the High Court conﬁrmed the conviction and sentenced. On appeal, the Supreme Court upheld the conviction and sentence. Counsel for appellant pleaded for mercy, as he himself did not inﬂict any blow. The Supreme Court rejected this plea, as the accused had shared the common intention and was present on the spot with his lathi, While his brother actually dealt the blow on the sleeping man. "If there is any extenuating circumstances outside the record, the appeal must be to authorities other than the Courts of Law.". [Section 401, Criminal Procedure Code not referred '60.] Case No. 10. Pandurang v. State of Hyderabad A.I.R. 1955 S.C. 216, 223, paragraph 37~ (1955) 1 S.C.R. 1083. (B. K. Mukherjee, S. R. Das and Bose J.J.) (Judgment by Bose J.) When appellate Judges who agree on the question of guilt differ on that of sentence, it is usual not to impose the death penalty, unless there are compelling reasons. So observing, the Supreme Court in this case reduced the sentences of death of two persons (to transportation for life) in View of the fact that in the High Court, there was difference of opinion regarding them, not only as to guilt but also as to sentence. (Also discusses section 34, Indian Penal Co-de). NOTE :----Where there is a diﬂerence of opinion as to guilt, certain other small points also arise:---« (a) Is the third Judge bound to agree with the acquitting opinicn, in me absence of strong and compelling reasons? There is some controversy In re Nzmiah, A.I.R. I959 A.P. 313, 318, Paragraph 15, Uma Maheshwaran I. answered this in the afﬂrmative disagreeing with In re Sitaramayya, A.I.R. 1953 Mad. 61, 63 (Paragraph 5), 66 (paragraph 18). For a contrary view, see Mistri 1). King I.L.R. (1949) I Cal. 43. It would seem that the third Judge is not bound by any such limitation. Cf. Balm v. State A.I.R. I965 S.C. 146, paragraph 7. (b) Cannot the third Judge pass death sentence as a matter of law? See the doubt expressed by Mack J. in In re Simm- mayya, A.I.R. 1953 Mad. 51,64, paragraph 8 in view of the wording of Section 377, Criminal Procedure Code which re- quires that the conﬁrmation should be by at least two Judges. Nora :---From a recent Supreme Court case, it would seem that the proposition enunciated in Pandurang's case (supra) cannot be raised to the pedestal of a rule for that would leave the sentence to the determination of one judge to the exclusion of the other" Balm v. State A.I.R. T965 S.C. I467. 23 Case No. 11. Sunder Singh v. State of U.P. A.I.R. 1956 S.C. 411 (Not in S.C.R..) (Bhagwati, Venkatarama Ayyar, Sinha JJ.) (Judgment by Sinha J.) The appellant was in intimacy with the wife of the de- ceased and this was the motive for the crime. On the night of the occurrence, the appellant and the deceased went out together, and only the appellant returned. Blood stained marks were seen on appellant's shoes during the investi- gation, and he was arrested. Thereafter blood-stained clothes were also discovered with him. A sword was re- covered at the scene of offence at his instance, and there was other evidence also. He was convicted and sentenced to death. The conviction was upheld by the Allahabad High Court, which conﬁrmed the sentence also. While discussing the appeal filed on certiﬁcate granted by the High Court under article 134(1) (c), the Supreme Court very strongly criticised the High Court for granting the certiﬁcate. The High Court's order was described as erroneous. There was no substantial question of law or principle involved and the High Court would not be justiﬁed in granting a certiﬁcate. Attention of the High gourt was drawn to Nar Singh v. State1 and Baladin V. tateg. Case No. 12. Basdev v. State of Pepsu A.I.R. 1956 S.C. 488----(1956) S.C.R. 363. (Bhagwati and Chandrasekhara Aiyar, JJ.) (Judgment by Chandrasekhara Aiyar J.) The appellant, a retired military Jamadar was charged with the murder of a young boy aged about 16 years. They along with others went to attend a marriage in another village and went to the house of the bride to take the midday meal. Some persons has settled down in their seats and some had not. The appellant who was very drunk and intoxicated, asked, the boy to step aside a little so that he may occupy a convenient seat, but the boy did not move and the appellant whipped out a pistol and shot the boy in the abdomen. The boy died. It was found that though the appellant was under the influence of drink, he was not so much under the inﬂuence that his mind was so obscured that there was incapacity in him to form the required intention. His drunkenness and absence of pre-meditation were taken by the Sessions into account regarding the sentence. 1. A.I.R. 1954 S.C. 457----1955 S.C.R. 238. 2. A.I.R. 1956 S.C. I8:---(Not in S.C.R.). 24 He was therefore convicted of murder under section 302, but awarded the lesser penalty. An appeal to the PEPSU High Court was unsuccess- ful. The Supreme Court granted special leave, limited to the question, whether the offence committed fell under section 304 of the Penal Code, having regard to the provi- sions of section 86 of the Penal Code. The Supreme Court held, that while it was true that drunkenness which renders the accused incapable of enter- taining requisite intent should be taken into consideration along with other facts proved inorder to determine whether or not he had this intent, yet in this case the drunkenness had not proceeded to that degree. The accused had failed to prove such incapacity as would have been available to him as a defence. The oifence was not reduced from murder to culpable homicide and "the conviction and sentence are right.". The case contains an excellent discussion of the effect of drunkenness and approves of the proposition laid down by the House of Lords in D.P.P. V. Board1 and summarised in Russel on Crime, 10th Edition, page 63 on the subject. Case No. 13. Narayanan v. State of Travancore-Cochin A.I.R. 1956 S. C. 99 (Not in S.C.R. Bose, Jagannadhadas and Sinha JJ.) (Judgment by Bose J.) Appellant was convicted under section 302 for murder- ing one 'A' and sentenced to death. There was longstand- ing litigation in which the appellant and the deceased were on opposition sides. There was a ﬁght between the son-in- law of the deceased and the appellant. The deceased, not par- ticipating in the ﬁght, merely asked the son-in-law to stop ﬁghting, and said that he would settle their dispute. Thereupon the appellant stabbed the deceased with a pen- knife which he drew out from his Waist, and hit him on the chest causing injury which eventually killed the deceased. The injury was sufficient in the ordinary course of nature to cause death. Two special facts to be noted are, that the ﬁght was started by a slap by the son-in-law on the face of appellant, resulting in a minor scufﬂe between the two: and that the pen-knife was drawn out by the appellant from his waist. He was convicted under section 302 and sentenced to death. The Supreme Court upheld the conviction and held that exception 4 to section 300 did not apply, since it was impossible to say that there was no undue advantage taken when the accused stabbed the unarmed person who had no threatening gesture and merely wanted to stop ﬁghting. 1. I920 A.C. 479. 25 On the question of sentence the Supreme Court made the following observations while reducing it to transpor- tation of life:------ "VVe feel the lesser sentence is called for, because the slap on the face evidently made the appellantwho appears to be a hot--blooded man lose control of himself. That would not afford justification for killing an innocent by- stander who intervened with a mild admonition to the appellant's adversary to stop ﬁghting. But We feel that on the question of sentence this is not the type of case in which the death sentence is called for. There was no pre- imeditation and the knife was not ready in the hand but was drawn from the waist after the appellant had been slapped and the qurrel between the (son-in-law) and him had started." Case No. 14. R. Venkalu v. State of Hyderabad A.I.R. 1956 S.C. 171 (Bose, Jaganadhandas & Sinha JJ.) (Judgment by Sinha J.) The accused set ﬁre to the cottage in which the de- ceased was sleeping. They also took care to lock the door from outside, so that servants sleeping outside could not give help, and to prevent villagers from bringing help to the person who was being burnt alive. (There was a longstanding dispute about land). They were convicted under section 302, Indian Penal Code and sentenced to death. The High Court conﬁrmed the sen- tence. On appeal (by special leave) to the Supreme Court, the Supreme Court conﬁrmed the conviction, and observed' as follows:------ "The circumstances disclosed in the evidence point to the conclusion that the oﬁence was committed after a pre--concerted plan to set ﬁre to the cottage after the man had as usual occupied the room and gone to sleep. There is no doubt . . . . ..the charge of murder has been brought home . . . . . . . . ..and that in the circumstances there is no question but that they deserve the extreme penalty of the law". 1. Paragraph IO in A.I.R. 26 Case No. 15 Wazir Singh V. State of Punjab AIR. 1956 S.C. 754. (Not in S.C.R.) (Bhagwati & Ayyar J.) (Judgment by Bhagwati J .) X and Y Were charged under section 302 and 34 Indian Penal Code with the murder of S. Both were armed with riﬂes and had the common intention of killing B, but the shot ﬁred by them at B resulted in the death of S. Some of the injuries received by S were sufficient in the ordinary course of nature to cause death, but it was not established which of the two accused was responsible for those fatal injuries. The Sessions Judge convicted both and passed the sentence of death. The High Court in the conﬁrma- tion proceedings conﬁrmed the sentence of death on X but reduced the sentence on Y to transportation for life. X appealed by special leave to the Supreme Court, the appeal being limited to the question of sentence only. Con- tention of X was, that the common intention to kill B could not, by section 301, be transferred to the murder by B of S, because there was at no time any common inten- tion to murder S. Held, on the evidence on record there was nothing which could necessarily lead to the conclu- sion that it was the appellant X who was responsible for inflicting the fatal injuries on the deceased. If it was doubtful as to who out of the two responsible, there was nothing to choose between X and Y. If Y was awarded the lesser penalty, there was equally good reason in favour of X also. Further, the act of the Appellant X would certainly fall within section 326 involving trans- portation for life. Under these circumstances, there was no justiﬁcation for conﬁrming the death sentence award- ed to X. The High Court should not have distinguished the case of X. Conviction under section 302 read with 34, conﬁrmed, but sentence reduced to transportation for life. Case No. 15A, Ram Chandra v. State of U.P. A.I.R. 1957 S. C. 381, 387, paragraph 6. (Jagannadhadas, Imam and Govinda Menon JJ.) (Judgment by Jagannadhadas J.) In this case, there Was no tangible evidence (direct or circumstantial) of the murder. The Supreme Court observ- ed, "It IS true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found." But, on the evidence, the Supreme Court gave the beneﬁt of doubt to the appellants as regards the 27 oﬁence of murder, and set aside the conviction for murder and sentence of death confirmed by the High Court of Allahabad. The case was one of conspiracy to extort Rs. 10,000 from one C by kidnapping and murdering his son aged about 14 years. On the facts, the Supreme Court regarded it as proved that the appellants had kidnapped the boy. Findings of the lower courts on offences under section 364 (kidnapping) and section 386 (extortion), Indian Penal Code were maintained and sentences on those counts con- firmed. Case No. 16. Brij Bhukhan v. State of U.P. A.I.R. 1957 S.C. 474 (Not in S.C.R.) (Jagannadhadas, B. P. Sinha and Imam JJ.) (Judgment by Imam J.) The High Court, while upholding the conviction of the appellants under section 302 read with section 149, re- duced the sentence of death on some of the accused to transportation for life but did not reduce the sentence of death passed on appellant P. Held, merely because leniency was shown to some appellants was no ground for reducing the sentence on P shown to be responsible for the killing. Case No. 17. Vadivelue Thevar v. State of Madras. AIR. 1957 S.C. 614ﬁ 619, (Note in S.C.R.) J agannadhadas, Sinha and Gajendragadkar, JJ.
(Judgment by Sinha J ) This was a case of cold-blooded murder, for which the accused had been sentenced to death by the sessions Court, East Tanjore, under section 302, Indian Penal Code and the sentence had been conﬁrmed by the High Court of Madras. The accused appealed to the Supreme Court, by special leave.
K was the owner of a tea shop and at about 11-30 p.m. while he was busy preparing tea for a customer, the two appellants rushed into the premises. They attacked K and dragged him out of his shop to the road, and the first appellant gave him several blows in the front part of the chest with an "aruval" (cutting instrument about 2 feet long including the handle). K fell down on his back and cried out for help. His wife tried to rescue him and put his head into her lap. Soon afterwards realising that K had died, both the appellants returned, K's Wife placed his head on the ground and went and stood on the steps of 28 the tea stall. The first, appellant made the body of K lie with his face downwards and gave a nl_1II_1be.1' Of Cuts In the head, the neck and the back. These 1I1]uI'l€S were such as to cause instantaneous death.
The Supreme Court, while dismwssmg the appeal, after positions of importance. First, it was argued that the pro- positions of importance. First, it was argued that the pro- secution case was based entirely on the evidence of one witness----the wife of the deceased, (the 'other witnesses being not reliable) and that conviction in a capital case could not be based on a single witness. The court rejected this argument as totally untenable. It drew attention to section 134 of the Evidence Act, under which no particular number of witnesses was required for proving any fact, As far back as 1872, it said, the legislature, having con- sidered the pros and cons, had decided that it should not be necessary for the proof or disproof of a fact to call a particular number of witnesses.
If the Legislature were to insist upon plurality of wit- nesses, cases where the testimony of a single witness only could be available in proof of the crime would go un- punished. If the testimony of a single witness is found to be entirely reliable, there is no legal impediment to the conviction on such proof. Moreover, if courts were, irres- pective of the quality of the evidence of a single witness, to insist on plurality of witnesses, they would be indirectly encouraging subordination of witnesses in situations where only one witness is available. There might be exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver. But where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisﬁed that the testimony of a single witness is entirely reliable. The court had, in this case, no reason for not accepting the testimony of the wife "which is the only reliable evidence in support of the prosecutionl.
On this point, see also---
(l) Mohamed Sugal v. The King. AIR. 1946 P.C. 3.
(Appeal from Somaliland, to which the Indian Evidence Act and the Indian Oaths Act had been made applicable). In this case, the conviction and sentence of death for murder of a half-brother were upheld. Unsworn evidence of a girl of 10 or 11 years was held to be admissible. It was also pointed out that under the Indian Evidence Act, corroboration is not required by statute and goes only to the weight. (In the instant case, there was corroborative evidence).
I. See paragraph 12 of the A.I.R.
29(2) Vemireddy v. State of Hyderabad, 1956 SCR. 247, 252--A.l.R. 1956 S.C. 3'79, 381, paragraph 7 and page 380, paragraph 6.
(Observations to the effect that in the facts of the case it would be unsafe to hang four persons on the sole testi- mony of a dhobi boy, without corroboration). The dhobi boy was not an abettor, he merely witnessed the crime but did not inform anybody on account of the reign of terror that prevailed at that time.
Case No. 18.
A.I.R. 1958 S.C. 180: (1958) S.C.R. 187 (Jaganadhadas, Imam and Govinda Menon JJ.) (Judgment by Imam J.) VVhen D was sleeping on a cot, the report of a shot ﬁred woke up the people. They saw the appellant running towards the east, accompanied by others. D died almost instantaneously as the result of the injuries on his chest and stomach, from where pellets were recovered at the time of the post-mortem examination. Near D's cot, a cartridge was found. The accused also produced a pistol. The ﬁre--arm expert deposed that he (the expert) had ﬁred four test cartridges from the pistol produced by the accused, and found that the individual characteristics of the chamber impressed upon the test cartridges and markings, were also present on the paper tube of the cartridge found near the cot of the deceased.
There was evidence of motive also. (Quarrels as to who should be the guardian of one R. and regarding cons- truction of a wall by the appellant over R's land had been going on).
The appellant was sentenced to death for murder of the deceased. Appeal to the High Court was dismissed-- Appellant obtained special leave to appeal to the Supreme Court.
The conviction was upheld by the Supreme Court, and appeal dismissed. (There is no discussion as to sentence). Case No. 19.
Mtza Ji v. State of U..P., A.I.R. 1959 Supreme Court 57221959 Supreme Court Joiumnal 554_--_(1959) Supp.
1S.C.R. 952 (Imam, Das & Kapur JJ'. Judgment bye Kapur J.) The appellants, 5 in number, went with the common' object of getting forcible possession of land which was int 30 possession of the deceased. Appellant Mizaji was armed with a pistol, his father Was armed with a spear and others were armed with lathis. When the complainant's party were told that the appellants were cutting the crop, the complainants protested to the appellant M1za]i's father, whereupon the complainants were threatened by all the members of the accused party that they would be ﬁnished if they did not go. Then the father of appellant Mizaji asked Mizaji to ﬁre and Mizaji ﬁred the pistol, as a result of which 'R' was injured, fell down and died half an hour later. All were convicted under section 302 read with section 149 and sentenced to imprisonment for life, but Mizaji was sentenced to death. Appealed to the Sup- reme Court. The Supreme Court (discussing in detail cases on sections 34 and 149) upheld the conviction. As regards the sentence, the argument of Mizaji was that he did not want to ﬁre the pistol and was hesitating to do so until he was asked by his father, and that the penalty of death should not have been imposed on him. This was repelled by the Supreme Court as Mizaji fully shared the common object. He also carried the pistol from his house and must have been taken to have carried it for using it and he did use it. "Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the Court would take into consideration".
Case No. 20.
Mohan V. State of U.P. AJR. 1960 Supreme Court 659 (S. K. Das, Sarkar and Hidayatullah) (Judgment by Sarkar J.) (Not in S.C.R.) Evidence in the case showed that the accused gave the deceased three "peras" and within half an hour the de- ceased became ill and within two hours he died. It was also proved that the food which the deceased had taken did not contain poison and that the deceased did not take any other food apart from the "peras". Chemical examina- tion showed that he had died of arsenic poisoning. (As regards motive, suggestion was that accused had illicit intimacy with the wife of deceased). He was convicted under 302 and sentenced to death.
"The High Court conﬁrmed the conviction. He appealedto ' Supreme Court with special leave. Supreme Court dismissed the appeal. It pointed out that on these facts, the lower courts had found that arsenic was con- tained in the "peras". The Supreme Court saw no ground for taking exception to this ﬁnding, and the ﬁnding in- evitably led to the conclusion that the appellant was in possession of arsenic before he gave the peras.
~A - -~11!' 31 Case No. 21.
K. Subba Rao, Raghubar Dayal and J. R. Mudholkar Court 1787----(1962) 2 S.C.R. 395. K. Subba Rao, Raghubar Dayal and J . R. Mudholkar JJ.) (Judgment by Reghubar Dayal J.) Appellant along with a number of other persons, as- saulted the deceased and his companions on account of a dispute about possession of land. The deceased, etc., also struck the appellant's party. The deceased received injuried and died. Thirteen persons were tried but 10 were acquitted (as the evidence did not prove the case beyond doubt) and 3 were convicted. One contention raised by the appellant was that since 10 persons out of 13 had been acquitted, the remaining 3 persons could not constitute an unlawful assembly and the conviction under section 302 and 307 Indian Penal Code read with section 149 was illegal. This contention was repelled by the Supreme Court, which laid down that if the actual 1'lUl""il.')€3I' of persons in the appellant's party was more 'uh -1 5, the said party would constitute an unlawful as- sembly, even though only 3 persons had been convicted. Acquittal of the remaining persons would only mean that they were not in the incident. (Question of the sentence not discussed).
Case No. 22.
K. M. Nanavati v. State of Maharashtra.
AIR. 1962 Supreme Court, 605 (Not in S.C.R.) (S. K. Das, K. Subba Rao, and Reghubra Dayal JJ.) (Judgment by K. Subba Rao J.) A number of points were involved in this case. But for the present purpose, the case is noted for its discussion of the law relating to grave and sudden provocation consti- tuted by confession of adultery by a wife to her husband. The court pointed out, that words and gestures may also under certain circumstances cause grave and sudden pro- vocation in India. On the facts of the case, it was held, that though the confession by the wife of the accused of illicit intimacy with the deceased had caused momentary loss of self-control, yet after this the accused drove his wife and children to a cinema, left them there, went to his ship and took revolver and loaded it, did some oﬁicial bus'ness and drove his car to the oﬂice of the deceased and then to his ﬂat and then went to the bed room of the deceased and shot him. Interval between the time of his leaving his house and the time for murder was 3 hours-- sufﬁcient for regaining self-control. Hence the case did not fall within exception 1 to section 300 and the accused was rightly convicted of murder. (The High Court had, after hearing the reference made by the Sessions Judge 32 under section 307, Criminal Procedure. Code convicged him of murder, and sentenced him to imprisonment ﬂtlar life. Question of sentence was not discussed before 9 Supreme Court).
Case No. 23.
A.I.R. 1962 S.C. 1198 (Not in S.C.R.) Raghubar Dayal Kapur and Sarkar JJ.) (Judgment by Raghubar Dayal J.) A number of points involving interpretation of sections 234 and 239, Criminal Procedure Code and section 271 and amended section 537 Criminal Procedure Code and as to joint trials for offence under section 302 and section 307, Indian Penal Code were decided. But for the present purpose, the point of importance is one of sentence on B. B armed with a gun and R armed with an axe passed the ﬁeld of L. L asked B Where he was going. He replied that he was going for shooting birds. L turned back. B ﬁred two shots at L who fell down and died. B and R then proceeded southwards and after going about seven fur- longs met Bhagwan who questioned where he was going. B said that he was going to shoot crocodiles. Bhagwan said that there were no crocodiles and asked B to go back. When Bhagwan turned South, B ﬁred a shot at him. Bhag- wan sat down and B again ﬁred at him and again ﬁred two more shots. Bhagwan died.
B was found guilty under section 302 Indian Penal Code for murders of L and of Bhagwan and sentenced to death for both the murders. He was also found guilty under section 307 and convicted and sentenced to 8 years' rigorous imprisonment. (This was in respect of an attempt to murder later, after the villagers had pursued the appellant). R was found guilty under section 302 read with section 34 and sentenced to life imprisonment for the» murder of L. and of Bhagwan. He was also found guilty under section 307 read with section 34 and sentenced to 5 years rigorous imprisonment.
(There were points regarding irregularities, etc., not relevant for the present purpose). It was urged on be- half of B, that the sentence of death was too severe, as the shots at L were the result of the provocation consti- tuted bv certain conversation with B and there was no motive for shooting at L. This argument was repelled, ﬁrst, because the courts below had not believed B's ver- sion of the conversation and secondly, because the con- versation even if believed was not such as to provoke B to ﬁring at L twice. Further, there was no justiﬁcation for' ﬁring at Bhagwan without provocation. Hence sentence» of death was not reduced by the Supreme Court.
33As regards R, however, it was held that the evidence did not prove the offence against him and that his running away from the scene was merely the result of his antici- pating popular reaction. He was acquitted.
Case No. 24Tara Chand V. State of Maharashtra. A.I.R. 1962, S.C. 130---
SCJ-17..(1962) 2 S.C.R. 775. (Qapur, Subba Rao, Hidayatullah, Shah and Raghubar Dayal JJ.) Majority judgment of Kapur, Subba Rao and Shah JJ held that as both the trial court and the High Court had found that the deceased, wife of the accused, had died as a result of burns caused by ﬁre set to her clothes by the accused who had sprinkled kerosene oil on her and this ﬁnding was supported by her dying declaration against which no cogent reasons were given, the conviction based on such evidence was sustainable.
The Sessions Judge had convicted the accused only of an offence under section 304, Part II and sentenced him to three years' rigorous imprisonment and a ﬁne of Rs. 100/-. On appeal by the State the accused was sentenced by the High Court to death. The accused applied for certiﬁcate to appeal to the Supreme Court under article 134(1) (a), but the certiﬁcate was refused and the Supreme Court gave special leave under article 136. Ultimately, however, in this case the majority of the court held that the appellant was entitled to a certiﬁcate under article 134(1) (a), because since the appellant had in the trial court been acquitted of the offence under section 302 and convicted under section 304, Part I, the High Court's order reversing the acquittal and substituting an acquittal under section 304 was one of reversing an order of acquittal. Citting Kishan Stngh v. Emperor, A.I.R. 1928, P.C.--254--55 Indian Appeals, 390, the court held that acquittal does not mean that the trial must have ended in the complete acquittal, and must include a case where the accused is acquitted of murder but convicted of a lesser offence. 1 According to the majority judgment, the appeal failed and was dismissed. Question of sentence was not as such in issue.
The minority.--Raghubar Dayal and Hidayatullah J J .-- was of the opinion that it was not satisfactorily proved that appeallant committed the murder, and therefore allow- ed the appeal.
4--l22 Law.
34 Case No. 25Muniappan v. State of Madras. 4.1.3. 1962, S.C. 1252- (1962) 3 S.C.R. 869. Kapur and Hidayatullah -U-) (Judgment by Hidayatullah J.) After making a dying declaration which was complete in itself, the declarant suddenly collapsed so that his thumb impression could not be aﬁixed in his life time and was taken by the Sub--Inspector after his death on the statement as recorded. The court observed that though the Sub- Inspiector should have left the document as it Was, yet he had no improper motive in taking the thumb impression after death. The dying declaration was a complete state- ment and could be relied upon. In fact it needed no cor- roboration--Khushal Rao v. State of Bombay, 1958, S.C.R. 552--A.I.R. 1958 S.C. 22. There was in this case, however, other incriminating evidence also. Conviction for murder was upheld. (Question of sentence was not discussed as such).
Case' No. 26.
Piure Dusadh v. Emperor. A.I.R. 1944, F.C. 1, 14,----I.L.R.
23, Patna 159--I.L.R. 1944 Nagpur 300----, 1944-6 F.C.R. 61.
(Spens C. J ., Varadachariar and Zafrulla Khan JJ.) (Judgment by the Chief Justice.) These appeals from judgments of different High Courts were heard together as raising common question of law regarding the special Criminal Court Ordinance. For our purpose, the case is of interest only for the observations regarding death sentence. lln one of the appeals before the court, the death sentence had been imposed several months ago and the appellants had been lying ever since under threat of execution, delay having been caused largely by the time taken in proceedings regarding constitutionality of the ordinance creating the courts, etc. The Court observed, that it had power to substitute lesser sentence where there had been in ordinate delay (in cases which came before it) even though the sentence when originally imposed was right. But this was a jurisdiction which any court should be slow to exercise, being a jurisdiction closely entrenching on the powers and duties of the execu- tive. Accordingly, in cases Nos. 40, 41 and 42, the court refused to reduce the sentences from death the transporta- tion, in view of the other circumstances of those cases. (But, the courts said, it had no doubt that the executive would give full consideration to the period that elapsed and the mental suffering undergone by the convict.).
In case No. 47, the appellant was a young man of 25, twice widowed, who had killed his aunt (father's wife) 35 and who had, after being senten reason while awaiting the execution and was now detained as a lunatic. The court reduced his sentence to transpor- tation for life on the ground that the appellant probably suffered from an unbalanced mind.
Case Nos. 27 and 28.
Rajagopalan V. Emperor, A.l.R. 194, FC. 35, 36, 38 1944, F.C.R. 169 (Spens C.J., Varadachariar and Zafrulla Khan JJ.) This case is of importance for the proposition laid down (by Zafrulla Khan J., Spens C. J. Concurring) that in a case of conviction under section 302 read with section 149, lndian Penal Code the sentence must in all cases be transportation for the life could not be accepted. The question of sentence is to be decided on the facts of each case. (On the facts of the case, it was held that since there had been a ﬁnding that the appellants were among the seven or eight persons, who inﬂicted large number of injuries, the sentence of death was appropriate).
Varrdachariar J. had, on the facts some difficulty in sustaining the sentence of death on accused No. 1, as he had a doubt whether accused No. 1, inﬂicted any wound. But, since the question was bound up with inferences of facts with which "it was not the ordinary practice" of the Federal Court to interfere, and since his brother judges thought that death sentence was justified, he left the matter there.
Case No. 29Bhadu. (1896), I.L.R. 19 All. 119.
It was held that it was not advisable to convict the accused solely on the plea of guilty by the accused in a capital case, where there is any doubt as to whether the accused fully understood the meaning and effect of the plea.
Note:~--For other cases on this point, see the under- mentioned decisions of Bombay' and Madras? The Bombay case reviews the case law also, and holds that a plea of guilty can be accepted only when there are proper safeguards, which must include representation by counsel.
1. Abdul KaderA11arakhia,(r946), 49, BOT1'1l')3Y Law Reporter, 25--
§'\fI).R. 1947 Born. 345 (Special Bench), (Stone C.]., Sen and Rajadhyaksna
2. Aiyawi. (1885) 1.1.1! 9 Madras 61.
ced to death. Lost his 36 The Bombay Special Bench of Abdul Kedar Allm-akhia° is interesting. The appellant had been convicted by Lokur J. and a special jury under section 302, Renal Code for the murder of his own daughter and only child--a girl of about 14 years--a.nd found by unanimous verdict to be guilty and sentenced by the Judge to transportation for life.
On appeal under section 411A, Criminal Procedure Code the conviction and sentence were set aside, and the case sent to the next Sessions to be dealt with according to law. The reasons for setting aside the conviction were these. The accused had asked the committing Magistrate for legal aid. But, at the opening of the Sessions, he was- arraigned to plead without counsel. So arraigned and asked to plead, he said that he was guilty. In the charge' to the jury, the judge referred to the plea of guilty, though the judge made it clear that he (the Judge) did not accept the plea and that the plea was not before the Jury. These» two "irregularities--taking the plea of guilty without counsel, an-d referring to it in the charge to jury--were- held to vitiate the trial. (Stone C.J.2 also observed that without proper safeguards, the plea of guilty should not be accepted. These safeguards he said, must include the accused's representation by counsel who must be in a position to answer the questions of the Court with regard to whether the accused knows what he is going and the consequences of his plea and also a medical report or medical evidence upon him). Lacuna in section 272, Criminal Procedure Code Was also pointed out by Sen J. and Rajadhyadsha J3., observing that it did not cover a case where the accused pleaded guilty and the court did not wish to convict him in exercise of the discretion con» ferred upon the Court under section 272(2).
Case No. 30.
Umi Kom Joyaji (Bombay) (1911) Chandavarkarl and Heaton J.
A barren woman who killed another's child to get children was sentenced to death.
I.AbdulKad All kl' A.I.R.I9 B . S C. . K.C.S ' and Rajadhyakshdrjj.) a(§.l?:1.)'. 47 om 345 ( tone I ' en
2. Paragraph 4 in the A.I.R.
3. Paragraph 26 and 36 in the [A.l.R. dissenting on this 1:o:'nt from Mahamed Yusuf_ v. En.pe1-or, A.I.R.f I931, Calcutta 34r.--.I.L.R. 58 Calcutta I214, I2I9.
Y Ijudgment was by Chandavarkar I. These were conﬁrmation cases lxo. 112 & 119 of 1911, dated 23-3-I911 cited Ratanalal, (1961) p. 786 foot- note 17. (Unreported).
37 Case No. 31Kali V. Emperor, A.I.R. 1923 All. 474 (2)--I.L.R. 45 All. 143 (Stuart J.) In this case, the Sessions Judge of Meerut requested the High Court to set aside the conviction recorded by his predecessor (and affirmed in appeal by the High Court), on the ground that on certain material that had since come to the knowledge of the District Magistrate the conviction was wrong. This application by the Sessions Judge for revision, it was held, could not be entertained. The Dist- rict Magistrate may, it was suggested, refer the matter to the Local Government for exercising its power under sec- tion 401 and 402, Criminal Procedure Code.
(The person concerned had been sentenced under sec- tion 395, Indian Penal Code to 10 years rigorous imprison- ment for dacoity. After his conviction, one B. was arrest- ed and R made a confession legarding several dacoities including this one, and said that the convicted person was not in the gang at all.).
Case No. 3.2 Bandhu V. Emperor, A.I.R. 1924, All. 662, (Stuart and S. M. Sulaiman JJ.) In this case the appellant had been found guilty by the Sessions Judge of murder under section 302, Indian Penal Code, and sentenced to death. One D had been brutually attacked with lathis and beaten into unconsciousness, dragged away along the ground, leaving traces of blood dragged by the assailants until they reached the Koilar river. D had never been seen since then. The attack was committed at about mid--night.
The High Court (on appeal) was unable to arrive at a conclusion that D was dead and therefore could not uphold the conviction for murder, 'but on the facts, the crime of an attempt to murder under section 307 was held to have been committed, and, therefore, the conviction was altered to one under that section, and the appellant sentenced to transportation for life.
Case No. 33Ghulam Jarmat v. Emperor AIR. 1926 Lah. 271--I.L.R. 7 Lah. (Shadi Lal C. J. & Jafar Ali J.) (Judgment by Shadi Lal C.J.).
A young girl of 18 years married to a boy of 13 years contracted intimacy with another person and became pregnant and gave birth to an illegitimate child in Multan. To conceal her shame, she strangled the child. She was convicted of murder and sentenced 'to transportation for 38 life. Conviction and sentence were upheld, by the High Court. But it made a recommendation to the Local Gov--
ernment to exercise its powers under sections 401 and 402,. Criminal Procedure Code and commute the sentence to one of rigorous imprisonment for 3 years.
Case No. 34MSt. Daulan v. Emperor, A.I.R. 1926, Lahore 144. (Scott Smith and Fforde JJ.)  She an-d her husband were not getting on well, and the murder was committed to avenge herself against her husband. The Sessions Judge convicted her under section 302 Indian Penal Code-
and sentenced her to death.
On appeal, the High Court in View of the age and the' other circumstances, reduced it to transportation for life, and further recommended local Government to take action under section 401, Criminal Procedure Code.
Case No. 35.
Ram Nath V. Emperor, I.L.R. (1926) 1 Lucknow 327.- A.I.R. 1920 (Sir Louis Stauart, Chief Judge, Oudh--234 and Mohammed Raza J.) In this case, on Prag Gir (and others) had been attacked by some assailants at night with lathis. The dea-d body of Prag Gir had not been recovered, nor had he himself re- turned alive. There was some delay in making of the complaint by those who survived. The Sessions Judge had found ﬁve persons guilty of the murder of Prag Gir, but.
refused to sentence them to death, giving this reason':-
"I think it is a legitimate reasons to say that when in a case like this the dead body is not found, there. is a reasonable case where sentence of transportation may be awarded instead of the heavier sentence.".
The Chief Court "disassociated" itself entirely from this view, and stated, that the question of sentence should be determined upon the gravity of the offence irrespective of ' the circumstances whether the body or has not bee" dis- covered. A decision of the Allahabad High Court was explained as merely holding that death of the victim must be proved and not as holding that dead body must have IPagc 330 in the I.L.R.
1Bandhu, A.I.R. (1924), A11. 662.
39been discovered. (On the facts, however, in View of the unreliability of the evidence, the conviction was reversed).
NOTE:--(a) To the same effect are the following cases:----
(1) Bhagirath (1880), I.L.R. 3 All. 383, 384 (Straight J.).
(2) Maya Basuva, (1950) 1 M.L.J. 428--A.I.R. 1950 Mad. 452.
(3) Bhairon Lal, (1952) I.L.R. 2 Raj 669--A.I.R. 1953, Raj. 131.
(4) Munda A.I.R. 1931 Lah. 25.
(5) In Raggha v. Emperor, AIR. 1925, All 627, 636, Middle, and 636 bottom--I.L.R. 48 A11. 88, (FE), Sir Grimwood Mears CJ. and Lalit Mohan Banerji, J. held that the absence of the recovery of the dead body should not be taken into account as regards sentence, if the court was otherwise satisﬁed about the guilt of the accused. ,,_,_._,._;,_,
(b) Mukerji, J . however, though upholding the convic- tion under section 302 read with section 114, Indian Penal Code expressed the View that the sentence should be reduced to transportation for life. He had no "reason- able" doubt about the guilt of the accused. But in view of the fact that the dead body had not been recovered, he had a doubt about the proper sentence. "There are degrees of doubt and there is no harm in being cautious." There may be a doubt which, (though less than a reasonable doubt) might still require that the Judge be cautious in passing the sentence. There were cases where, if the dead body was not recovered or the facts were not clear, the lesser sentence was given. He cited:--
(i) Queen v. Buddruddeen, 11 W.R. (Cr.) 20 (facts not given).
(ii) Queen Empress V. Gharya, I.L.R. (1895) Born. 729 where J ardine and Ranade JJ. while accepting an appeal from an acquittal, passed a sentence of trans- portation because all the facts were not clear;
(iii) Kashna (1894) Criminal Reference No. 7 of 1894 (Bombay), (See Ratan Lal, 1961, page 778). In this case the accused had thrown a girl of less than two years into a canal, where the water was deep, and swollen by the monsoon. The High Court held h.im guilty merely to attempt to commit murder.
40(c) For other cases on the point, see:---«
(i) Rajkumar Singh, A.I.R. 1928. Pat. 473;
(ii) Azam Ali, A.I.R. 1929 A11. 710.
(iii) Adu Shikdar, I.L.R. 11 Cal. 635, 642, 644.
(d) For an English decision, see R. V. Onufrejczy, (1955) 1 All Eng. Report, 247 (C.C.A.) in which, a convic- tion for murder was upheld on other evidence, even though the dead body had not been found.
(e) The celebrated New Zealand case of R. 1). Harry (1952) N.Z.L.R. 111 (N.Z. Court of appeal) also holds that discovery of dead body is not essential.
Case No. 36Tola Ram v. Emperor A.I.R. 1937 Lah. 674-I.L.R. 8 Lah. 684 (Zafar Ali and Tek Chand JJ.) Accused was convicted of murder. He was suffering from epileptic ﬁts and, because of that, was liable tolnse self-control on the slightest provocation. He was sent- enced to transportation for life. The High Court upheld the conviction and sentence. It also made a recommenda- tion to the State Government for exercise of the preroga- tive of mercy, under section 401 Cr. P.C. and for "substan- tial reduction" in the sentence.
[Cites following cases where similar recommendation was made-
Ramzan v. Emperor, (1919) 30 P.R. 1918 Cr.-20 Cr. L.J. 1.
Lachhman v. Emperor, A.I.R. 1924 All. 413-I.L.R. 46 All. 243--Q.E. v. Kedar, (1896) I.L.R. 23 Cal. 604].
Case No. 37Preman v. Emperor A.I.R. 1928, Lahore 93.
(Shadi Lal C. J. and Addison J.) In this case the fatal attack was not premeditated and the victims were injured in the heat of passion on a sudden quarrel. There was, however, no ﬁght and the requirements of exception 4 to section 300, Indian Penal Code had not been established. A violent blow was de- livered with a "dang" on the head and therefore the court observed, the assailant must be deemed to have intended to cause bodily injury which he knew was likely to cause death. Conviction under section 302 was upheld, but sentence was reduced from death to transportation for life.
41e;Case N0. 38 Harnamun v. Emperor A.I.R. 1928 Lah. 855 (Shadi Lal C. J. and Coldstream J.) (Judgment by Shadi Lal C.J.) The accused and one K killed one Narain Singh and his 'wife while they were sleeping on the roof. K was attack-
ing the husband and the accused was seen striking the wife with a hatchet in his hand. Blood stained clothes were also recovered from the accused. Conviction under section 302 was upheld by the High Court.
As regards sentence, the High Court noted that on the one hand, the accused was responsible directly for the murder of the wife and constructively for that of the husband, and that the double murder was committed after premeditation and in cold blood. On the other hand, the accused was a boy of 17 and, while youth alone was no extenuating circumstance, there was the additional cir- cumstance that the accused had no personwl enmity with the victims and was probably a tool in the hands of the victims' enemies who had been acquitted by the Sessions Judge. Hence the sentence was reduced to transportation for life. ' Case No. 39 Shuﬁ Khan v. Emperor A.I.R. 1929, Patna 161, = I.L.R. 8 Patna 181, (Courtney--Terrell, C. J. and Macpherson J.) (Judgment by the Chief Justice) In this case, 18 persons were convicted by the Sessions Judge under section 302, Indian Penal Code for the murder of a constable M. Two of them were sentenced to death, and the remaining to transportation for life. The facts were these. The accused Who had been sentenced to death had long been suspected as dangerous criminals implicat- ed in various dacoities and robberies. There were com- plaints of thefts against them, and also a proceeding under section 110 Cr. P.C.\' pending against them. One prosecu- tion witness in one of these proceedings lodged an infor- 'mation at a police station, charging the appellants and other unknown persons with the theft of 6 bullocks. The F.I.R. was recorded and a police party sent to the village for investi'g_ation. Thereafter, a party consisting of cons- table M (deceased) and another constable, etc., was sent 'to arrest the appellants by the Sub-Inspector. Two hours I Judgment through slip' mentions Indian Penal Code.
42after this, the Sub-inspector himself, set out, taking with:
him a shot gun and six cartridges. When he arrived near the place, he heard an outcry that the constables he had sent had been beaten. He went to the spot and found the constable M (deceased) with his arm broken and bound in a sling, and the other constable had marks of lathi blows. It appears that constable M when he tried to arrest appellants S and I was resisted, and then_ about 14 or 15 men including the appellants ran up with lathis and beat the constables inﬂicting the injuries. The Sub- Inspector, again, after recording the F.I.R. for this inci- dent, went in the direction of the house of appellant S for investigating the matter of the theft and for arresting the appellants.  The Sub- Inspector's party included the injured constable, M.M tried to remonstrate with the mob, but he was immediate- ly struck down by a spear wound in the chest and a lathi blow on the head, each of which wounds was separately of a fatal character. The attack by the mob still continu- ed, and the Sub--Inspector had to ﬁre. Three persons in the mob, R. S. and J. armed with spears, took refuge in a house, R. S. ("id J. were arrested by force by the police.
The High Court, while conﬁrming the conviction, re- jected the argument that those appellants who had been sentenced to death should be awarded the lesser sentence. The argument was, that where a large number of persons had participated in a murder and where it may be un- desirable that a large number should undergo the death penalty, only those who took the active part were selected for death penalty. The High Court rejected this as un- sound. In its opinion prima facte all the persons convict- ed should be sentenced to death penalty, and it was only Where special circumstances were shown in favour of any individual that the court should sentence him to the lesser penalty. There were no special circumstances in favour of the appellants who were sentenced to death. In its opinion, R. S. and J. armed with lethal weapons and tak- ing a foremost place in the assault should also have been sentenced to death, but it was not the practice of the Court, except in extreme cases, to enhance the sentence. (Hence their sentence was not enhanced).
Case No. 40Emp. v. Dukari Chandra Karmakar, A.I.R. 1930 Calcutta, 193, 33 C.W. No. 1226 (C. C. Ghose J. on difference of opinion between Cuming J. and S. K. Ghose J.) Accused was charged with murdering his wife. The wife was staying with her father, and apparently there 43 was at the time of marriage some arrangement that accus- ed should stay with the father--in-law (as a ghar-Jamai). The accused was not satisﬁed with this arrangement, and. went away to his house. The girl remained with her father, though she did go to her husband's house from time to time. Relations between the accused and the father--in-law were not cordial. On the day of occurrence, the accused went to his father-in-law's house and stayed there for a day and also on the next day. Next day even- ing he went out returned at night, and, after taking his meal retired to the upper room, where his wife joined him; and the door was bolted. Next morning, the aunt of the wife, seeing that the wife did not come down, went up- stairs to call her. On pushing the door, she found the wife dead in a pool of blood with a number of wounds. The accused was not there. He remained absconding for six weeks and surrendered himself after a proclamation was issued and his property attached.
On these facts, in the Sessions Court, ﬁve members of the Jury found him not guilty and the remaining four found him guilty. The Sessions Judge referred the case to the High Court under section 307, Criminal Procedure Code. Both the Judges hearing the reference in the High Court agreed about the guilt of the accused; but there was difference of opinion about the sentence. Cuming J. observing that it was a cruel and brutal murder perpe- trated apparently without motive on a defenceless girl in her sleep, thought that there was no ground for not giving him the sentence of death. Quoting section 367(5) Criminal Procedure Code (as it stood then), he observed:--
"It is clear that the sentence of death has been considered as the normal sentence and the sentence of transportation for life as the abnormal sentence for which reasons are required to be given."
S. K. Ghose J E' regarded the sentence of transportation for life as sufficient. First, he pointed out, the murder' was committed in a ﬁt of desparate resentment in circum- stances for which the accused was not entirely to be blam- ed. Secondly, the accused had borne a uniformly good' character, had been good towards his wife's relations and not outwardly quarrelsome. Thirdly, his last visit was one of many that had ended in failure. Fourthly, it was found that the weapon had not been taken by the accused, but was already there in the room, being a sacriﬁcial knife I. The iudgrncnfof S.K. Ghose ]. was regarded as illuminating by the editor of the C.W.N. See (1929) 33 C.W.N. (journal) page 185.
44kept in the room. (The father-in-law of the accused was a professional sacriﬁcer, who kept the knife there to avoid its use by chi-ldren.) The provision in the Criminal Pro- cedure Code, section 367, was regarded by S.K. Ghose J. as a one of procedure only. It did not take away the Court's duty to see that in a particular case the punish- ment ﬁtted thecrime. Reasons for death sentence, it was true, were not required to be stated by any express provi- sion in section 367, "but these reasons must exist in the mind of the Judge. It is unthinkable that the Judge will pass a sentence of death in preference to the alternative sentence without good and sufficient reasons.".
The matter was referred to C. C. Ghose J. owing to this difference of opinion. C. C. Ghose J. agreed with S. K. Ghose J. that the facts of the case justiﬁed the lesser sentence, because the accused committed the murder in the fit of desperate resentment, and was a mere lad of 20 years. Moreover, his repeated visits had ended in failure. "The. question of appraising the sentence to be passed on a prisoner is at all times a difficult one. But I think in this case it would not be straining the language of sec- tion 367 if I were to hold that the prisoner should be sentenced to transportation for life." (Apparently, he agreed with S. K. Ghose J. on the interpretation of sec-
'tion 367 Criminal Procedure Code also, though the point is not discussed in his judgment.) 'Case No. 41 Emperor v. Bhagwan Din A.I.R. 1931, Oudh, 89(1) (Raza and Pullan JJ.) Accused was found guilty of murdering a small boy of six, for his ornaments. He was sentenced to transporta- tion for life. For imposing the lesser sentence, the Sessions Judge had given three reasons----(i) the accused was a young lad of 18; (ii) he may still reform; and (iii) there was no premeditation. The Local Government ap- plied in revision for enhancement. The Chief Court heard the appeal of the accused also regarding conviction.
' The Chief Court upheld the conviction.
As to sentence, the Chief Court observed that there is no law which justiﬁes a court in not passing a sentence of death on any person merely because he is young. All persons who can understand the nature of their acts are liable to the extreme penalty of the law. Youth may be taken into consideration where the accused is not able to understand the nature of his act or acts under the inﬂuence of others. But this was deliberate murder for greed. Next, the consideration that the accused may still reform 45 "should be excluded entirely in all questions where a capital sentence can be inﬂicted. It is not for the legis-
lature to reform murderers." The sentence of death was primarily a deterrent one. The lesser sentence was im- posed where some extenuating circumstance was there and it was not necessary in the interest of the public at large that the sentence of death should be inﬂicted. The sentence was enhanced to death.
Case No. 42Tiri v. Emperor A.I.R. 1931, Rangoon 171 (Maung Ba and Dunkley JJ.) Youth alone is not an extenuating circumstance, but it can be taken into consideration with other facts.
In the case under discussion a young man, probably under 18, had been sentenced to death for murder of his own uncle because of some dispute regarding ﬂow of water in a channel. The injury was an incised wound, cutting right through the spine. The High Court dismissed the appeal of the accused against the conviction, and regarded the sentence as quite proper, as this was a cold-blooded and premeditated murder at a time when 'the deceased was peacefully engaged in his plough and was unarmed.
Case No. 43A-ung Hla v. Emperor. A.I.R. 1931, Rangoon 235--I.L.R. 9 Rangoon 494 (Special Bench). (Page C.J. mya Bund Baguley JJ.) (Judgment by page C.J.) In this case, 103 persons in all were charged under sec- tion 131, Indian Penal Code (waging war against the King). Of these, 15 were sentenced to death. 56 to transportation for life, 5 discharged, 24 acquitted and there were found to have absconded. Persons sentenced to death or transporta- tion for life appealed to the High Court, and the High Court also served notices against 23 of the accused for enhancement of their sentence of transportation to death. Ultimately, the High Court conﬁrmed the conviction of several persons, and enhanced the sentences of 3 persons. It stressed the gravity of the offence under section 121 describing it as the most grievous offence that can be com- mitted against the State, and said, that rebels who waged war were guilty of the most heinous of all crimes. The judgment also contained a lengthy discussion of the mean- ing of section 30. Evidence Act. (Waging war in this case was constituted by deliberate attack on the armed forces, to prevent collection of taxes).
46 Case No. 44«Gul V. Emperor, A.I.R. 1932, Lahore 483. (Agha Haidra J.) This was a case of rape of a young girl, discussed here to show the unusual circumstances in which it was com- mitted. The girl aged. 16 or 17 years had gone to the hills for cutting grass with her sister and other young children at about "rotiwela" (between 10 and 11 in the morning) M and A (accused) met them. Both were armed with a gun, and M also carried a big dagger. They got hold of the girl and dragged her to the hills. On her offering 1esist- ence, M struck "her several times with the buttend and of the gun. The accompanying three children could oﬁer no resistence and returned to the village. Before help could come, the girl had already been raped by M (apparently, twice).
The trying Magistrate (empowered under section 30 riminal Procedure Code) had sentenced both M and A to three years' rigorous imprisonment under section 366, and as regards the offence under section 376 Indian Penal Code M was sentenced to three years' and A to one year's rigorous imprisonment. The sentences were to run con- secutively.
The High Court, while dismissing their appeal, enhanc- ed the sentence of M under section 376 from three years' to ﬁve years, in View of the circumstances of the case and in view of the fact that the accused were armed with dead- ly weapons and by a show of brute force they overawed the children and ragged away the girl at the point of the gun, and committed rape. (A was acquitted of rape, as his part in relation to 'fiat offence was not very clear.).
Case No. 45Nawab v. Emperor, ALR. 1932 Lahore, 308 (Shadi Lal C.J. & Abdul Qadir J.) (Judgment by Abdul Qadir J.) This was a case of murder committed by youth of tender age, who was provoked by the conduct of the de- ceased in having sexual intercourse with a relative of the accused in an open manner three days before the murder. Case was recommended for exercise by the local Govern- ment of its prerogative of mercy.
(Age of the Youth was taken to be 15 or 16 years.).
Case No. 46Kartar Sirzgh v. Emperor, A.I.R. 1932 Lahore 259, 260. (Tek Chand & Jai Lal JJ.) (Judgment by Tekchand J .) This was a case of young boy of 17 years participating in murder under the inﬂuence of his father and elder 47 brother. He was sentenced to transportation for life b)' the Sessions Judge. High Court agreed, and also recom- mended to Local Government to reduce it under section 401 Criminal Procedure Code to four years' rigorous imprisonment.
Case No. 47Mt. Dhulan V. Emperor, A.I.R. 1934 Lahore 31. (Jai Lal and Bhide JJ.) (Judgment by Jai Lal J.)  She became pregnant and was turned out by the relations. She gave birth to a child. Owing to poverty and i1l--treatrnent by the relations, she threw the child--a girl of 11 days--in a pond. She was sentenced to transportation for life by the Sessions Judge.
, >4.
The sentence was affirmed by the High Court. But in View of the circumstances, recommendations was made by the High Court to the Local Government for reducing the sentence to one one year's, rigorous imprisonment under section 401, Criminal Procedure Code.
Case No. 48Kaim A.I.R. 1935, Sind 44, 46 (Ferrers J. C. and Dadiba C. Mehta A.J.C.) It was held that the Baluchi custom of killing for unchastity is not a mitigating circumstance.
Case No. 49Emp. V. Mominuddi Sardar A.I.R. 1935. Cal. 591, 594, 595. (Patterson and Cunliffe JJ.) (Judgment by both) Penitance of the accused is not a ground for imposing the lesser penaltyl.  But penitence can per- haps be taken into account by the local Government.
(Sentence was, however, reduced in this case on other grounds----that of provocation and the age of the accused, who was 22 or 23 years).
IThere are, however, ooservations in Emp. v. Nirmal jiban A.I.R. 19355 Cal. 513, 525 which suggest that if the accused who were young had expressed, remorse for their offence, court might have imposed lesser penalty.
IParagraph 8 in the A.I.R.
48Case No. 49A Emp. v. Nirmal Jiban A.I.R. 1935, Cal. 513, 525, 526 (Costello, Bartley and Henderson JJ.) In this case, the High Court conﬁrmed the sentences of death on three persons--terrorists convicted of by the Com-- missioners (Special Tribunal) appointed under the Bengal. Criminal Law Amendment Act, 1925 of the murder of Mr. Burge, District Magistrate, Midnapur. The Commis- sioners, while noting their "extreme youth" (exact age- not given in judgment), had also observed that the object of their activities was a "deadly" one. The High Court agreed and stated that if the accused had shown that they were impressionable youths dominated by others and had expressed regret, extenuating. circumstances might have- been pleaded. But that was not the case here.
Case No. 50Rangappa Goundan (1935), I.L.R. 59 Madras 349 It was held that consent or admission by the Advocate of the accused to dispense with the medical witness in as murder case cannot relieve the prosecution of proving the nature of the injuries and the fact that they caused death. (It was also held in this case that a post mortem report is no evidence and can only be used to refresh the memory of the person who prepared it.) Case No. 51 In re Rangappa Goundcm A.I.R. 1935 Lahore 337.
(Cornish and K. S. Menon JJ.) (Judgment by Cornish J.) I.L.R. 16 Lahore 1137.
Young C.J. and Abdul Rashid J. (Judgment by the Chief Justice) In this case the High Court enhanced the sentence of transportation for life to death in the case of all the three accused. The facts of the case were, that the three accus- ed murdered one P who was acting as a lambardar and who used to assist the police in criminal matters. He used' to give information to the police concerning crimes com- mitteed by two of the accused. Some days before the- murder, a relation of one of the accused told P that he should stop giving information to the police, failing which something would happen to him. Thereafter, P and his: nephew were attacked by the three accused who had hid- den themselves to wait for P's arrival. 15 injuries were 49 inflicted on P, out of which 10 were on the head. The Sessions Judge awarded the lesser sentence on the ground that it could not be said which of the accused gave a fatal blow.
The High Court rejected this approach. The mere fact it was impossible to say who actually inﬂicted the fatal wound was not a reason for a lesser punishment when the court was satisﬁed that there was a common intention to murder, brutally carried out and that all persons took part in the beating, the result of which was death. In this case there were no less than 10 wounds on the head; and pro- bably each of the accused gave a blow on the head; the only other alternative was that While only One accused was beating the head, the others were giving blows on the body. It would make no difference if either of these alter- natives was the fact. Hence the sentences were enhanced to death.
Case No. 52-
A.I.R. 1937 Lahore 689, 691. (Young C. J. and Monroe J.) (Judgment by Monroe J.) A girl of less than 17 years was a party to a murder in which her husband and others were the chief actors. Her statement as approver led to a sucessful investigation and to the conviction of the principal criminal, though she failed to earn her pardon. She was sentenced to transpor- tation for life, by the Sessions Judge, after conviction under section 302.
The High Court, while conﬁrming the conviction, ob- served that her situation was not an enviable one, since the husband and mother were determined on the murder. Her statement had led to successful investigation and con- viction of the criminal. She had already suffered by the birth of her child in jail. Recommendation was made to Local Government to reduce the sentence of transporation of life, under section 401 Criminal Procedure Code.
Case No. 53.
Infanticide by young mother (of her own son) Mt. Talian v. Emperor.
A.I.R. 1938 Lahore 473 (D.B.) (Young C.J. and Monroe J.) (Judgment by Young C.J.) Need for lenient view was stressed on the ground that child-birth occasionally produced peculiar reaction. Sen- tence of transportation for life upheld, but Government was requested to reduce it to short period-.
5-122 M of Law.
50Case No. 54-
A.I.R. 1946 Caltutta 36--I.L.R. (1944) 2 Calcutta 287.
Five persons were convicted under sections 396 and 120B /395 Indian Penal Code. The Sessions Judge refrain- ed from passing the death penalty, as the murders (of 3 persons) could not be speciﬁcally ﬁxed on any one of the accused. He sentenced them to eight years' rigorous im- prisonment. The High Court enhanced the sentence to transportation for life.
In view of the fact that the prisoners were tried before the Sessions Court in December, 1942, and a certain amount of delay was occasioned by the necessity of making a re- ference to the Full Bench, the High Court refrained from passing the death sentence. But for this, the High Court observed, it could imagine no more suitable case than this for the maximum sentence. It observed, that it was p1'eci- sely for such a case that section 396 was enacted.
Case No. 55.
A.I.R. 1948, Lah. 24.
(Marton and Khosla JJ.) (Judgment by Marton J ._) In this case, on an appeal by the State, the High Court set aside the acquittal of the respondent for the murder of a woman. While noting that considerable time had elapsed since the acquittal by the Sessions Judge was an- nounced, the High Court awarded the sentence of death in these words 1--
"I, however, feel strongly that the learned Ses- sions Judge should undoubtedly have sentenced Ram Singh to death and as there are not intrinsic circum- stances warranting leniency, I consider it the duty of this Court now to do what should have been done at the trial".
It appears that before committing murder, the accused had sexual intercourse with the woman murdered and so also had the approver. After the murder, the accused and the approver robbed the Woman of ornaments.
51Case No. 56.
Garden Stngh V. Emperor AIR. 1948, Lab. 53.
(Muhammad Munir and Mohd. Jan JJ) (Judgment by the former.) In this case, the High Courtcnhanced the sentence of three persons from transportation for life to death.
The Sessions Judge, while convicting them of murder under section 302 and 148, Indian Penal Code had impos- ed the sentence of transportation for life on the ground that all the accused were young men of 20 or belou_> and none of the injuries inﬂicted to the deceased were indivi- dually fatal. The High Court strongly criticised this atti- tude. The normal sentence for murder was death; the Judge could give reasons for imposing the lesser 'penalty but the reasons given by him were not conclusive and were open to revision. "It is only when any.well recog- nised ground is found to exist that the judge is justified in withholding the capital punishment". (The High Court then proceeded to enumerate a few extenuating circums- tances' but it made it clear that the classiﬁcation was not exhaustive or absolute). It regarded age as insuﬂicient ground for leniency, since the offenders were not of ex- treme youth and had not acted under inﬂuence of any elder. The fact that the injuries were not individually fatal, was also regarded as irrelevant to sentence (though it might be relevant on the question where the offence was murder). Again, the Sessions Judge had expressed the View that it would be extremely hard to send all the four accused to gallows. The High Court pointed out, that every sentence worked hardship on the man sentenced and on others. But that was not a circumstance that ever entered into a judicial determination of the sentence to be awarded. Sentence enhanced to death.
Case No. 57.
A.I.R. 1948 Nagpur 20(2)---I.L.R. 1947. Nagpur 226.
(Hemeon and Padhya JJ.) The accused committed 4 murders in succession and was sentenced by the Sessions Judge after conviction under section 302 to death. The persons murdered were one woman and three children. It appears that he was not on _ good terms with his wife, and because of their bad re- lations, the wife left his house to stay with her sister. In spite of his request she did not return. This had enraged him. Next morning the Wife Wanted some money and I . Paragraph 8 in the A.I_R, 52 made a request to the accused, whereupon the accused got enraged and threw the keys on her. The wife picked up the keys and went near the money box. This further en- raged the accused, who, (to prevent and punish his wife) proceeded to the ﬁrst floor where the box was kept. The minor son of the brother-in--law (wife's brother) of the accused was the ﬁrst to be the subject of the anger of the accused, who killed him by causing not less than 13 in- juries with a sharp knife. He then attacked his wife. When his wife was rescued by the wife of his brother-in- law with a daughter in the lap, they were killed by the accused. The accused also injured another young daugh- ter of the accused's brother-in-law.
On his appeal to the High Court, the High Court con- ﬁrmed the conviction. A plea of insanity was taken on behalf of the accused in the Appellate Court, though not in the lower court. The Court held that insanity of the nature required by section 84 of the Penal Code had not been proved. A crime is not excused by its own atrocity. No experf had been called to prove his mental condition, and a mere opinion by one Doctor that the accused may have been in a temporary ﬁt of mania at the time of the incident did not help very much. The Court was, however, of the opinion that the sentence ought to be altered to one of transportation for life. The accused had no motive to kill the woman and her three children. The motive, if any, was against the wife, who however was not killed. It was in evidence that the accused loved and used to feed the children killed by him. There was no prearrangement, no accomplice and no secrecy. Under a strong and sudden impulse without any motive he had committed the mur- ders. He was completely unhinged, and had lost the bal- ance of his mind, and acted abnormally under an impulse which proved too strong for him. These were extenuating circumstances which impelled the Court to modify the sentence. The Court reduced the sentence to transporta- tion for life and also recommended to the Provincial Gov- ernment that the case may be dealt with under section 401, Cr. P.C.
As precedents for its recommendation, it cited the fol- lowing cases 2-
(1) Tola Ram v. Emperor, A.I.R. 1927 Lah. 674- I.L.R. 8 Lahore 684;
(2) Emperor v. Gedka Goala, A.I.R. 1937 Pat. 363- I.L.R. 16 Pat. 333;
(3) Ramadhtn v. Emperor, A.l.R. 1932 Oudh 18- I.L.R. 7 Lucknow 341.
53Case No. 58.
A.l.R. l'f}5i). East Punjab 159. (Kapur and Soni JJ.) (Judgment by Kapur J.) "fine appellant and one R attacked B, using a kirpan and a barchha. 8 received 24 injuries and died instantaneously. Ezlotive of the crime was dispute regarding niuiaiiuii of certain estates gifted in favour of R' and others. The Ad- ditional Sessions Judge convicted the appellant of the offence under section 302 Indian Penal Code and sentenc- ed him to transportation for life. His reason for impos- ing the lesser sentence was, that the appellant was not related to B, (the deceased) and did not stand to gain by the murder but took part in the murder simply to oblige R.
On appeal to the High Court, the High Court confirmed the conviction and regarded the above reason for impos- ing the lesser sentence as inadequate. The murder was of a brutal kind and there were no extenuating circum- stances. That appellant did not sta.nd to gain was not such a circumstance. However, though the State made an ap- plication for enhancement of the sentence, High Court did not grant it, considering the fact that the appellant had been convicted more than a year ago.
A.I.R. 1950, East Punjab, 321. (Khosla and Soni JJ.) (Judgment by Khosla J.) Information was received that gambling was going on in a tent in the Refugee Camp at Muktsar. The Camp Commandant sent a party to make an inquiry. The party arrived outside the tent and surrounded it. Harnam Singh, Havildar of the National Volunteer Corps and Charan Das, the appellant '_(of the same Corps) constituted the party along with the Supervisor, Refugee Camp and one other person. Directions were given to the inmates of the tent not to move out, on which they protested. One of them tried to get out. Thereupon Haranam Singh_ the Havildar, gave orders to ﬁre. Charan Das, the appellant, one of the armed constables under the Havildar, fired as a result of which one N and a woman Rani were injured. Rani succumbed to her injuries. On these facts Charan Das and Harnam Singh were tried before the Additional 3% Sessions Judge, Ferozepur. Charan Das was charged un-
der section 302, Indian penal Code and Harnam Singh under section 302 read with section 34, Indian Penal Code. The Sessions Judge acquitted Harnam Singh, but convict- ed Charan Das under section 302 and sentenced him to transportation for life.
h Court, the High Court main-
On appeal to the Hig tained the conviction. The defence of the appellant was that he had acted in obedience to the orders of his sup-
perior. But the order, the High Court pointed out, was manifestly illegal. There was no disorderly crowd, nor murder. There was merely a suspicion of gambling. An order of ﬁring could not be given in such circumstances. Therefore, the appellant could not be exonerated. (A soldier cannot plead manifestly illegal orders of his supe- rior as a defence (English----Indian cases discussed). Since, however, the appellant was a youth of 20, recruited to the National Volunteer Corps, who had an exaggerated notion of his duties and of the authority wielded by his superior, the Court stated that while it could not reduce the sen- tence of transportation which was the minimum required by law, it recommended to the State Government to re- duce the sentence to three Years' rigorous imprisonment under section 401, Criminal Procedure Code. The case was not one of ordinary murder and hence this recommenda-
tionl.
Case No. 60.
A.I.R. 1950 Orissa 261,--I.L.R. 1950. Cuttack 293.
(J agannadhadas and Panigrahi JJ.) (Judgment by Panigrahi J.) In this case a boy of 12 years was convicted of murder. This boy, Ulla, was plucking palm-fruit from a tree stand- ing on his land. He was assisted in this by two other boys. One of them was eating the fruit that had fallen on the ground. At that time, the deceased boy, Ranka, arrived with another boy and picked up a fruit from the ground, whereupon the appellant Ulla protested and demanded its price. Ranka threw the fruit and remarked that he e appellant ever would cut the appellant in pieces if th went to the "Tope" (the place concerned) to pluck fruits. At this remark the appellant got excited and said that he would cut Ranka to pieces, and actually struck Ranka with a "Kahi" on left side of the chest just below the collar bone. Ranka fell down and died on the spot. The appel- lant was convicted under section 302 and sentenced to transportation for life. The Child witnesses we believed, whose evidence found corroboration in Doctor's statement.
' I." See also Subba, I.L.R. 21 Mad. 249 as to obedience to orders of supe- IIOIS.
55on appeal to the High Court, the conviction was con- firmed. The argument that the offence was one of culp- able homicide not amounting to murder because of provo- cation was rejected on the facts. There was more verbal provocation in this case and it was not sufficient to cause loss of self-control. But in view of the tender age of the appellant, the High Court under section 8 of the Refor- matory Schools Act, 1897 recommended detention in a re- formatory school for ﬁve years (instead of transportation for life).
Case No. 61.
Serajuddin V. State A.I.R. 1951 Allahabad 834 at p. 836.
As in awarding any other sentence, a judge who passes a sentence of death has to apply his judicial mind. The fact, that he has to record reasons for awarding the lesser sentence (under section 367 Criminal Procedure Code) merely means that Where no such reason is available, the sentence of death has to be passed. It is only to this lirr,i:.- ed extent that death sentence is the normal sentence Lo; a capital offence. The Indian Penal Code leaves it to the Judges judicial discretion to decide whether he should pass a sentence of death or transporation for life (or any other sentence permissible under law). He has to con- sider the question whether the case is one where a sen- tence of death should be passed or a lesser sentence, though no Jvdge would pass a sentence of death (where it is pro- per to pass a lesser sentence) merely because he has to give reasons for the lesser sentence.
Case No. 62.
In re Palaniswami Coundan A.I.R. 1952 Madras 175. (Govinda Menon and Chandra Reddy JJ.) (Judgment by Govinda Menon J .) Accused murdered his wife and father and injured his son. Though the accused was not held to be of unsound mind, yet there was an evidence that he had so a kind of frenzy or hallucination. Sentence of death was reduced to transportation for life.
Case No. 63.
State v. Kochan Chellayyaw--
A.I.R. 1954 Trav.-Cochin 435-I.L.R. 1953 T.C. 1062 (Koshi C.J. and Kumara Pillai J.) (Judgment by Koshi C.J.) Under the Travancore Penal Code, as amended by Pro- clamation of 11th November, 1944, rigorous imprisonment for life was the only sentence to be passed for murder. But after the passing of the Part B States Laws Act, 1951 a person convicted for murder committed after that date can be sentenced only to death or transportation for life.
56Case No. 64.
A.I.R. 1953 Travancore-Cochin. 402 I.L.R. 1053 (I) P.C. 514. (Koshi C.J. and Menon J.) (Judgment by Koshi C.J.)
(i) The Travancore Proclamation of 11th November» 1944 and the Cochine Proclamation of 26th November, 1944. abolishing death sentence, were no longer good law after the extension of the Indian Penal Code and Criminal Procedure Code under legislation of 1951. Under the Indian Penal Code, the death penalty was the normal punishment for murder.
(ii) Youth by itself is not an extenuating circumstance.
Case No. 65-
A.I.R. 1953 All. 220 I.L.R. (1953) 1 All. 608.
(Raghubar Dayal and C.B. Aggarwala JJ.) (Judgment by Aggarwala J.) In this case, M aged 22 and P aged 30 years appealed to the Allahabad High Court against their conviction under section 302 and under section 302 read with section 34 res- pectively and the sentences of death. The appellants along with others were tried for murdering one N while N was sleeping on a cot in a ﬁeld. The others were acquitted. but the appellants convicted as above.
There was some dispute about land, which was the motive behind the murder. The actual attack was by appellant M and another Brij Lal, while appellant P and another Ram Naresh held the feet of the deceased to faci- litate h's being killed. One or two person, who could not be recognised, armed with lathis were standing nearby. The main question discussed in the appeal was about sen- tence (The convictions were upheld).
Aggrawala J. maintained that section 367 (5), Criminal Procedure Code (as it stood then) gave an absolute dis- cretion to the court as regards imposing the sentence of death. He also expressed the view that the Judge had to keep pace with the timesl, that capital punishment was being discouraged and there was nothing in the law to prevent his discretion being exercised by a judge. In consonance with the more humanitarian View of the modern age. The discretion which the judge had should be exercised to ensure social justice. He gave a list of some of the cases in which the lesser penalty was award- ed. "To my mind the true principle of exercising the
1. Contrast In re F,'a1r:."m'f(: A.I.P.. 1939 Mad. I09, I12.
57discretion of imposing either the penalty of death or of transportation for life should be that the sentence of deatn is awarded in cases in wh.ch the act is very brutal and. highly repugnant to morals and the sentence of transpor- tat.on for life is imposed in all other cases".
in his view, out of the four classes of murder mention- ed in section 300 and its four clauses, the sentence of death should be restricted to-----
(J) Cases under section 300 (a) intention to cause death, because it is always brutal and barbarous to intentionally kill others.
(ii) As regards section 300--clauses (b), (c) and
(d) in cases where the injuries caused are brutal or action of the accused is highly repugnant. In other cases transportation should be imposed.
Even where death should be the ordinary penalty according to the above classiﬁcation, transportation should be imposed in certain circumstances. But he took care to observe that it is not possible to enumerate the circum» stances exhaustively or to lay down any hard and fast :'1le. Each case will have to be decided on its own facts. bome of the cases enumerated by him as fit for lesser penalty were------
(1) where the accused is very young or too old. "I would normally consider that a young man below 18 should be considerej too _'lQ'}I1g for death sen- tence. Similarly a person above the age of 70 be too old for death sentence;
(2) where persons under 20 acting on the insti- gation or inﬂuence of elders;
(3) where murder is committed during a sudden. quarrel and without premeditation or on the im- pulse, though the case does not fall under the excep- tions to section 300;
(4) when conduct of the deceased furnished grave though not sudden provocation. For example, aggrieved husband or other near relation of a woman murders a man who persists in offending the feelings of the aggrieved relative by publicly carrying an immoral intrigue with the woman;
(5)_ Where the liability is vicarious and the accus- ed neither took part in the beating nor instigated others to do so;
(6) Several persons are involved in the murder and only one deat'.o?=:ca1.i9ed and the .ctv'ons of several accused are -zen:-.'ole of being graded in the . D . -
58matter of causing death. For example, where one per- hich bring about the death and son inflicts injuries w .
others merely help the former or perform a minor act. In such a case the others would be sentenced to transportation unless they were the ring--1eaders. Though the murder may be premeditated the person who actually wields the instrument with which he causes death may be presumed to be more brutal than the others. On these principles, in his view, the appellant P who merely hold the legs of the deceased and was aged 20 years only should be sentenced to transportation for life instead of death.
Raghubar Dayal J. did not agree with the view that sec- tion 367(5) left any discretion to the Court. He cited several cases1 on the subject in support of the proposition that the normal sentence is death (for capital offences). In his view, the provisions in the Indian Penal Code and Criminal Procedure had been consistently interpreted to mean that in the absence of extenuating circumstances «death was the normal sentence.
In his opinion, the fact that the appellant P was mere- ly standing nearby was not a justiﬁcation for awarding the lesser sentence. [He referred to have discussed the Federal Court case of Rajagopalan."3] However, in view of his brother Judge's opinion, that the sentence of death passed on P be commuted to trans- portation for life, he agreed with the order proposed for such commutation.
Case No. 66.
In re Govindaswami.
A.I.R. 1953 Madras 372.
(Govind Menon and Mack JJ.) (Judgment by Mack J .) This was a case of double murder by a youth aged 16. He murdered one G by cutting his neck with an "aruval" (Knife) (surved knife or sickle) while G was asleep. Thereafter, he also cut one M while M was asleep in his house on the other side of the street. M also died instan- taneously. (The present case was tried only as regards the murder of _G). The accused was convicted of the murder under section 302, but the Sessions Judge sentenced him
1. Local Government v. Sit yaA ' na, A.I.R. I N . I R d A.l R. 1943 Mad. 69, 71; I.L.rR. Iq:1]3;'Mad. r48 Ggggev 2:S:g£n2v(I):7v.'l5rn:p., 10-18 Lah- 53, 51. 62 (Munir I-) Naresh Singh v. Emp., A.I.R. I935 Oudh
265. '
2. Rajagopalan v. Emperor, I944, F.C.R. 169; A.I.R. I944 F.C. 35.
59to transportation for life only, as the accused mad com- mitted the murder in the fear that G was intending 'to make a report against him at the police station regarding som-e theft committed by the accused.
Mack J. disrmssed the appeal against the conviction. He had also issued notice for enhancement of sentence. But as Govind Menon J. was reluctant to interfere in such a case for enhancing the sentence, Mack J. "though prepared to do that unpleasant duty," yet (out of defer- ence to brother's view) merely dismissed the appeal Without enhancement of sentence. He however pointed out to the Sessions Judge that the ordinary penalty for murder is a death sentence in the absence of extenuating circumstances, and that in the instant case there was no extenuating circumstance and neither the youth of the accused nor the fear ofa complaint being made against him of theft could be taken into consideration as an ex- tenuating circumstance.
Case No. 67.
Kanji v. The State A.I.R. 1953, Rajasthan 40-I.L.R. 1951 Raj. 727 (Wanchoo C. J. and Ranawat J.) (Judgment by Wanchoo C.J.) The appellant in this case was convicted of murder of a boy aged 14 years and sentenced to death by the Sessions Judge. A marriage party had come to the village and was staying in a mango-grove (bageechi). In that connection. a lot of drinking had been going on since the morning, and the appellant was also one of those who had been drink- ing. At about 6 p.m. while the deceased boy was picking raw mangoes in the "bags-echi" with another boy, the appellant turned up in the bageechi with a gun, went past the people who were sitting there and suddenly shot at the boy from a distance of about 10 paces. The boy fell down and died. The other boy was slightly injured.
The appe1lant's theory was, that the gun went off by accident and that he was intoxicated and did not know what happened, because he was not in his senses.
These pleas were not accepted by the Sessions Judge. On appeal to the High Court, the High Court also did not accept the pleas on the facts. It also pointed out, that under section 300, Fourth Exception, Indian Penal Code read with illustration (d), an imminently dangerous act was sufficient to bring the case within section 300 and it was not necessary that the gun should be aimed at a par- ticular person. In the case before the court, further the GU evidence was that the appellant shot at the boy. Where a person takes the risk of shooting at another, the act would ordinarily be an imminently dangerous act which just in all probability cause death etc. However, as regards the sentence the High Court pointed out two important features of the case:---
(in) There was no satisfactory evidence of motive. (The father of the deceased had deposed that the deceased had told the father that the deceased had accidentally found the appellant having sexual in- tercourse w3th his widowed sister-in-law). Assuming that this was admissible, the High Court was hesitant to accept this as a motive, and held that there was no clear motive.
(ii) Though the appellant was responsible for the natural consequences of his acts and guilty under see 302, in the circumstances of the case intoxication afforded as a sufficient excuse for not exacting the extreme penalty of law. Since there was no evi- dence for motive and the appellant was certainly drunk, the sentence was reduced to transportation for life'. In support of the reduction of sentence in case of intoxication, the following cases were cit-ed:----
(a) Pal Singh v. Emperor AIR. 1917 Lah. 226; and
(b) Judagi Mallah v. Emperor, , A.I.R. 1930 Patna. 168.
Case No. 68Gudder Singh v. State, A.I.R. 1954, Punjab 37,--I.L.R. 1954. Pun. 649.
Falshaw and Kapur JJ.
(Judgment by Kapur J.) G and B were convicted of murder in these Circum- stances. Certain people had refused to pay land revenue_ The Tehsildar advised them to pay up the land revenue. He also asked them to produce the rifles which the Gov-
ernment of India had given to villagers under the Border I. For similar facts in a latter l'epsu case where this Rajes.h;n c_-39 i ; cit~ d. ser-- ' Basdev v. State A.I.R. 1955- Pepsu 165,. I69. 170 paragraph 24. 2:, where also the lesser senwnce was held as mstiﬁe'. It cited several cases 3130 as I » eﬂect of intoxication.
61Defence Scheme at the time of the formation of Pakis- tan. After some time, 70 or 80 p-ersons of the village in- cluding G and B, came armed and stopped at a distance of 15 or 20 Karams from the place where the Tehsildar and others were. They shouted to G and B and others to kill Revenue and Police oﬁicials. Sub-Inspector K tried to pacify them, and while he was so doing, G ﬁred his riﬂe which hit K in his chest and K fell down dead. Other people started ﬁring, and the Police took up positions for ﬁring in self-defence. Ultimately the villagers retreated.
(Subsequent events are not relevant).
G and B were convicted under section 302, Indian Penal Code for the murder of K. G was sentenced to death and B was sentenced to transportation for life. The High Court dismissed their appeals as regards the conviction. As re- gards the sentence on G, because of the fact that he had been in custody from May, 1951, the High Court substi- tuted transportation for life in place of death.
Case No. 69In re Muniyandi, A.l.R. 1954-, Madras 196 (Mack and Chandra Reddy JJ.
(Judgment by Mack, J.) The appellant and one X intercepted two persons, accountants in the ﬁrm of Cannon Dunkerly who were carrying Rs. 5,600 in cash on cycle. The appellant was armed with a knife and X was armed with a revolver. X got hold of the cycle and asked one of the accountants to stop. That accountant jumped off the cycle. The other accountant riding the cycle lost his balance and fell down, and shouted for help, when X ﬁxed four shots at him, which resulted in his death instantaniously. Imme-
diately, the appellant went to remove the money bag. The accountant tried to prevent him, whereupon the appel- lant cut him with knife on the hand and snatched away the money bag. Then both the assailants ran away.
Four months after this, X and the appellant happened to be arrested for some other crime, and were identiﬁed for this crime also. X had been already sentenced to death for the other crime, and the sentence executed, and this case was now concerned only with the appellant. The Sessions Judge convicted the appellant under section 302 read with section 34, and sentenced him to death and also convicted him under section 392 and sentenced him to 7 years' rigorous imprisonment. (For the other case the appellant had already been sentenced to transportation of life under section 802 read with section 34).
9'2 The High Court conﬁrmed the conviction on the merits. The argument, that since there was no pre-arrangement to kill the accountant, the appellant could not be convict- ed under section 302 read with section 34, was repelled. "VVhen two persons start together for committing robbery and one of them is armed with a revolver and the other with knife, we may presume that the intention of these two persons is to use the weapon if the necessity should arise. . . ." Hence, the shooting was committed in further- ance of the common intention and it was unnecessary to established a pre-arranged plan for the murder of the victim.
As regards sentence, having regard to the fact that it was X who ﬁred the shots from a revolver and the injury caused to the surviving accountant by the appellant was of simple nature, the court felt that the ends of justice would be met by reducing the sentence of death to one of transportation for life.
(No'rE:--(i) As regards section 34, the court re- ferred to B. K. Ghosh v. Emperor, A.I.R. 1925 P.C. 1-- I.L.R. 52 Cal. 197 followed in Ramaswami v. State. A.I.R. 1952 Mad. 411.
(ii) The judgment records the fact that in the other case X had been sentenced to death and the present appellant was sentenced for transportation for life under section 302 read with section 34. But the court does not seem to have taken that factor as a factor against showing lenience to appellant. The sentences in the present case (transportation for life for 302 and 7 years' rigorous imprisonment for 392) were ordered to run concurrently with the sentences in "two other cases."
Case No. 70In re. Palani Moopan A.I.R. 1955, Madras 495.
Panchapakesa Ayyar and Basheer Ahmed Sayeed JJ. (Judgment by the latter).
 It seems that there were some quarrels between the two soon after the marriage in 1953 and the appellant started beating and ill-treating his wife. The appellant shifted to his sister's house leaving his wife in the house. The appellant made a confession under section 164, Criminal Procedure Code setting out the particulars of the offence and also stating that his wife was in illicit 63 with his "co--brother-in-law", that there were between him and his wife; that his wife had tried to poison him and that 'after. he left his house, the co-brother-in--laW had a Jolly life with his wife. On one occasion, in the "shaddy" (apparently, market) his wife was selling chillies and. his co-brother--in-law was sitting near her. The wife said to the co-brother-1n- law "my husband is not keeping me properly. I W111 come to Mevani tomorrow". This enraged the appellant who tried to drag his wife. The wife said "Who are you to drag me? I will go anywhere". Thereupon the appel-
lant stabbed the wife with the knife.
The High Court, while conﬁrming the conviction under section 302, reduced the sentence to transportation for life on the ground that the appellant was provoked, by the in-
solent answer given by the wife.
intimacy .
some misunderstanding Case No. 71 Khan v. The State A.I.R. 1955 Calcutta 146 (Chakravarti C.J. and P.B. Mukherjee J.) (Judgment by Chakravarti C. J.) Appellant K had in this case been convicted under sec- tion 302, Indian Penal Code and sentenced to death, while appellant A had been convicted under section 302 read with section 109 and sentenced to transportation for life. The trial was held in the Sessions Division of the High Court of Calcutta by S. K. Sen, J. They both appealed.
The facts were these. While the deceased was engaged in conversation with one G, the two appellants came up. The deceased told the appellants that he was having some private conversation with G and they were intruding and should move away. Appellant K said that he had no in- tention to do anything of the kind and challenged the de- ceased to do What he could. The deceased repeated his request, but without any heed. Hence the deceased put his hand on the back of appellant K and pushed him a few cubits, whereupon appellant, A shouted out to appellant K to strike the deceased down. Appellant A also grabbed the deceased by the hands and held him fast. Appellant K whipped out a knife and inﬂicted several injuries on the person of the deceased, who later expired in the hospital in the night.
The High Court, while conﬁrming the conviction, re- duced the sentence on K to one of transportation for life 64 in View of one feature of the case, "which bears very per- tinently on the question of sentence and requires atten- tion". That was this'. After the appellants had refused to quit the place, it was the deceased who ﬁrst laid his hand on Appellant 'K' and further started push1ng--the pushing being of a somewhat vigorous kind. He was re- sisted because each was pushing the other, and it was during such affray that the knife was suddenly whipped out and steel took the place of bare hands. "In those circumstances, it appears to me that although no sudden and grave provocation, such as would reduce the crime from murder to a lesser offence can be made out, yet there was such provocation as bears pertinently upon the question of sentence, even if the provocation might have been caused by the conduct of the ﬁrst appellant him- self and, therefore, might not be a lawful excuse for the act done by him". Hence the extreme penalty was not called for. There was pushing, pushing for considerable time and pushing between men who are notoriously or excitable nature. (The Court made it clear that this did not mean that an excitable person is entitled to go about in the streets and do people to death whenever his will is opposed. In this case, the physical assault was commenced by the deceased and when the struggle grew, the fury of the ﬁrst appellant fanned by the second appellant rose). Hence the sentence on ﬁrst appellant 'K' was reduced. (The sentence on the other appellant was maintained).
Case No. 72A.I.R. 1955 N.U.C. Bombay, 2977-C Shim-udrappa v. State (Dixit and Gokhale JJ.) Youth by itself is not a suﬂicient reason for imposing the lesser penalty for murderz.
Case No. 73Sabir v. State, A.I.R. 1955, N.U.C. All. 2279. (Beg and Chowdhry JJ.) xzcuscd being only 22 years old is no reason to award lesser punishment.
1. See paragraph 29 in the A.I.R.
2. Sea to the same eﬁect----Prodvot Kumar v. Emp. A.I.R. I933 Cal. I.F.B. "under age". Exact age not menticnel in judgment).
A.I.R. 1955 N.U.C, Bombay 4251. State v. Namdeo (Chainani and Gokhale JJ.) This was a case of an attack which resulted in four i':'1-_'_';'ClE"1'S and severe injuries to six others. Numerous assailants took part in the attack, but it was difficult to attribute any particular fatal injuries to any particular accused. Court refrained from imposing death sentence.
Case No. 75Nathu Lal v. State A.I.R. 1955, N.U.C. All 2289. (Agarwala and Roy JJ.) That the accused was drawn into the murder as a birelltng is no extenuating circumstance.
Case No. 76 ' (Subba Rao C. J. and Satyanarayana Raju J.) (Judgment by Subba Rao C.J.) In 7'8 Munirathnam Reddy, A.I.R. 1955, Andhra 118.
Accused, a student of college, below 21 years, shot the deceased when he abused him and his father. He was a man of good antecedents. He was sentenced to transporta- tion for life, but the High Court recommended his case to government to take action under section 10A of the Madras Borstal Schools Act (Act 5 of 1926).
Case No. 77In re Shtvanna A.I.R. 1955 Mysore, 17--I.L.R. 1954 Mys. 469.