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Report No. 35

Case No. 31

Kali v. Emperor, AIR 1923 All 474(2): ILR 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 District Magistrate may, it was suggested, refer the matter to the Local Government for exercising its power under section 401 and 402, Criminal Procedure Code.

(The person concerned had been sentenced under section 395, Indian Penal Code to 10 years rigorous imprisonment for dacoity. After his conviction, one R was arrested and R made a confession regarding several dacoities including this one, and said that the convicted person was not in the gang at all.).

Case No. 32

Bandhu v. Emperor, AIR 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 brutally 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. 33

Ghulam Jannat v. Emperor, AIR 1926 Lah 271: ILR 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 life. Conviction and sentence were upheld, by the High Court. But it made a recommendation to the Local Government 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. 34

Daulan (Mst) v. Emperor, AIR 1926 Lah 144

(Scott Smith and Fforde JJ.)

A woman aged 15 murdered her step-son by striking a blow on his head with a "Kahi". She and 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, ILR (1926) 1 Luck 327: AIR 1920 Oudh 234

(Sir Louis Stauart, Chief Judge, and Mohammed Raza J.)

In this case, one Prag Gir (and others) had been attacked by some assailants at night with lathis. The dead body of Prag Gir had not been recovered, nor had he himself returned 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:1-

"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 been discovered. A decision2 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 been 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 ILR 3 All 383 (384) (Straight J.).

(2) Maya Basuva, (1950) 1 MLJ 428: AIR 1950 Mad 452.

(3) Bhairon Lal, 1952 ILR 2 Raj 669: AIR 1953 Raj 131.

(4) Munda, AIR 1931 Lah 25.

(5) In Raggha v. Emperor, AIR 1925 All 627 (636): ILR 48 All 88, (FB).

Sir Grimwood Mears C.J. 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 conviction 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 "reasonable" 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 WR (Cr) 20 (facts not given).

(ii) Queen Empress v. Gharya, ILR 1895 Bom 729 where Jardine and Ranade JJ. while accepting an appeal from an acquittal, passed a sentence of transportation because all the facts were not clear;

(iii) Kashna (1894) Criminal Reference No. 7 of 1894 (Bombay), (See Ratan Lal, 1961 p. 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 him guilty merely to attempt to commit murder.

(c) For other cases on the point, see:-

(i) Raj Kumar Singh, AIR 1928 Pat 473;

(ii) Azam All, AIR 1929 All 710.

(iii) Adu Shikdar, ILR 11 Cal 635 (642, 644).

(d) For an English decision, see R.V. Onufrejczy, (1955) 1 All ER 247 (CCA) in which a conviction for murder was upheld on other evidence, even though the dead body had not been found.

(e) The celebrated New Zealand case of R. v. Harry, 1952 N.Z.L.R. 111 (N.Z. Court of appeal) also holds that discovery of dead body is not essential.

1. P. 330 in the ILR.

2. Bandhu, AIR 1924 All 662.

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