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Report No. 35

Case No. 6

Pran Das v. State, AIR 1954 SC 36 (Not in SCR)

(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 deceased, 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 resulted 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 supported by the evidence.

(Sentence altered to rigorous imprisonment for five years).

Case No. 7

Nawab Singh v. State of Uttar Pradesh, AIR 1954 SC 278 (Not in SCR)

(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 commuted to one for transportation for life, the Supreme Court observed that it was true that in proper cases an inordinate 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, AIR 1954 SC 28 (Not in SCR)

(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 particular time and that immediately after the murder, the accused went to one B with gold, etc., and then next morning to a goldsmith with gold and silver. The silver was identified as habitually worn by the deceased. The Sessions Judge acquitted him of the offence under section 302, Indian Penal Code but convicted him under sections 394 and 323. Accused appealed. Government also appealed against the acquittal in respect of section 302, Indian Penal Code. The High Court confirmed the conviction under section 394 and also convicted him under section 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 Uttar Pradesh, AIR 1955 SC 331 (333), para. 4 (Not in SCR)

(S.R. Das, Bhagwati and Imam JJ.)

(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 sentence.

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 the 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 to.]

Case No. 10

Pandurang v. State of Hyderabad, AIR 1955 SC 216 (223), para. 37: (1955) 1 SCR 1083.

(B.K. Mukherjee, S.R. Das and Bose JJ.)

(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 Code).

Note.- Where there is a difference of opinion as to guilt, certain other small points also arise:-

(a) Is the third Judge bound to agree with the acquitting opinion, in the absence of strong and compelling reasons? There is some controversy, in re Narsiah, AIR 1959 AP 313 (318), para. 15, Uma Maheshwaran J. answered this in the affirmative disagreeing with Sitaramayya (in re:), AIR 1953 Mad 61 (63) (Para. 5), 66 (para. 18). For a contrary view, see Mistri v. King, ILR (1949) 1 Cal 43. It would seem that the third Judge is not bound by any such limitation. Cf. Babu v. State, AIR 1965 SC 146, para. 7.

(b) Cannot the third Judge pass death sentence as a matter of law? See the doubt expressed by Mack J. in Sitaramayya (in re:), AIR 1953 Mad 51 (64), para. 8 in view of the wording of section 377, Criminal Procedure Code which requires that the confirmation should be by at least two Judges.

Note.- 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-Babu v. State, AIR 1965 SC 1467.

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