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Report No. 35

Case No. 16

Brij Bhukhan v. State of Uttar Pradesh: AIR 1957 SC 474 (Not in SCR)

(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, reduced 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 SC 614 (619) (Not in SCR)

(Jagannadhadas, 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 the tea stall. The first appellant made the body of K lie with his face downwards and gave a number of cuts in the head, the neck and the back. These injuries were such as to cause instantaneous death.

The Supreme Court, while dismissing the appeal observed:

First, it was argued that the prosecution 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 considered 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 witnesses, cases where the testimony of a single witness only could be available in proof of the crime would go unpunished. 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, irrespective 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 prosecution1.

On this point, see also-

(1) Mohamed Sugal v. King, AIR 1946 PC 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. Unworn 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).

(2) Vemireddy v. State of Hyderabad, 1956 SCR 247 (252): AIR 1956 SC 379 (381) para. 7 (and p. 380, para. 6).

(Observations to the effect that in the facts of the case it would be unsafe to hang four persons on the sole testimony 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.

1. See para. 12 of the AIR

Case No. 18

Kalua v. State of Uttar Pradesh, AIR 1958 SC 180: (1958) SCR 187

(Jaganadhadas, Imam and Govinda Menon JJ.)

(Judgment by Imam J.)

When 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 construction 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

Miza Ji v. State of Uttar Pradesh, AIR 1959 SC 572: 1959 SCJ 554: (1959) Supp 1 SCR 952

(Imam, Das & Kapur JJ. Judgment by Kapur J.)

The appellants, 5 in number, went with the common object of getting forcible possession of land which was in 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 Mizaji'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 Supreme 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 be 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., AIR 1960 SC 659 (Not in SCR)

(S.K. Das, Sarkar and Hidayatullah)

(Judgment by Sarkar J.)

Evidence in the case showed that the accused gave the deceased three "peras" and within half an hour the deceased 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 examination 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 appealed to 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 contained in the "peras". The Supreme Court saw no ground for taking exception to this finding, and the finding inevitably led to the conclusion that the appellant was in possession of arsenic before he gave the peras.



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