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Report No. 35

Case No. 26

Piare Dusadh v. Emperor, AIR 1944 FC 1 (14): ILR 23 Pat 159: ILR 1944 Nag 300: (1944) 6 FCR 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. In 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 inordinate 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 executive. Accordingly, in cases Nos. 40, 41 and 42, the court refused to reduce the sentences from death the transportation, 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) and who had, after being sentenced to death, lost his reason while awaiting the execution and was now detained as a lunatic. The court reduced his sentence to transportation for life on the ground that the appellant probably suffered from an unbalanced mind.

Case Nos. 27 and 28

Rajagopalan v. Emperor, AIR 1944 FC 35 (36, 38): 1944 FCR 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, Indian 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).

Varadachariar 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. 29

Bhadu, 1896 ILR 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 undermentioned decisions of Bombay1 and Madras2. 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.

The Bombay Special Bench of Abdul Kedar Allarakhia, AIR 1947 Bom 345 (Stone C.J. K.C. Sen and Rajadhyaksha JJ.) (SB). is interesting. The appellant had been convicted by Lokur J. and a special jury under section 302, Penal Code for the murder of his own daughter and only child-a girl of about 14 years-and 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, and referring to it in the charge to jury-were held to vitiate the trial. (Stone C.J.3 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 J4, 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 conferred upon the Court under section 272(2).

1. Abdul Kader Allarakhia, (1946) 49 Bom LR 25: AIR 1947 Bom 345 (Special Bench), (Stone CJ., Sen and Rajadhyaksha JJ.).

2. Aiyavu, 1885 ILR 9 Mad 61.

3. Para. 4 in the AIR.

4. Paras. 26 and 36 in the; AIR dissenting on this point from Mahomed Yusuf v. Emperor, AIR 1931 Cal 341: ILR 58 Cal 1214 (1219).

Case No. 30

Umi Kom Joyaji, (Bombay) (1911) Chandavarkar1 and Heaton J.

A barren woman who killed another's child to get children was sentenced to death.

1. Judgment was by Chandavarkar J. These were confirmation cases No. 112 & 119 of 1911, dated 23-3-1911 cited in Ratanalal, (1961), p. 786 foot-note 17. (Unreported).

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