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Report No. 35

Case No. 21

K. Subba Rao, Raghubar Dayal and J. R. Mudholkar Court 1787-(1962) 2 SCR 395

(K. Subba Rao, Raghubar Dayal and J. R. Mudholkar JJ.)

(Judgment by Raghubar Dayal J.)

Appellant along with a number of other persons, assaulted 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 injuries 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 number of persons in the appellant's party was more than 5, the said party would constitute an unlawful assembly, 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 SC 605 (Not in SCR)

(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 constituted 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 provocation 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 official business and drove his car to the office 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 under section 307, Criminal Procedure Code convicted him of murder, and sentenced him to imprisonment for life. Question of sentence was not discussed before the Supreme Court).

Case No. 23

Banwari v. State of U.P., AIR 1962 SC 1198 (Not in SCR)

(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 furlongs 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. Bhagwan 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 behalf of B, that the sentence of death was too severe, as the shots at L were the result of the provocation constituted by 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 version of the conversation and secondly, because the conversation 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.

As 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 anticipating popular reaction. He was acquitted.

Case No. 24

Tara Chand v. State of Maharashtra, AIR 1962 SC 130: (1962) 2 SCR 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 I 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. Citing Kishan Singh v. Emperor, AIR 1928 PC 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.

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 was of the opinion that it was not satisfactorily proved that appellant committed the murder, and therefore allowed the appeal.

Case No. 25

Muniappan v. State of Madras,• AIR 1962 SC 1252: (1962) 3 SCR 869

(Kapur and Hidayatullah JJ.)

(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 affixed 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-Inspector 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 statement and could be relied upon. In fact it needed no corroboration-Khushal Rao v. State of Bombay, 1958 SCR 552: AIR 1958 SC 22. There was in this case, however, other incriminating evidence also. Conviction for murder was upheld. (Question of sentence was not discussed as such).

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