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Report No. 35

Case No. 36

Tola Ram v. Emperor, AIR 1937 Lah 674: ILR 8 Lah 684

(Zafar Ali and Tek Chand JJ.)

Accused was convicted of murder. He was suffering from epileptic fits and, because of that, was liable to lose self-control on the slightest provocation. He was sentenced to transportation for life. The High Court upheld the conviction and sentence. It also made a recommendation to the State Government for exercise of the prerogative of mercy, under section 401, Cr. P.C. and for "substantial reduction" in the sentence.

[Cites following cases where similar recommendation was made-

Ramzan v. Emperor, (1919) 30 PR 1918 Cr: 20 Cr LJ 1

Lachhman v. Emperor, AIR 1924 All 413: ILR 46 All 243

Q.E. v. Kedar, 1896 ILR 23 Cal 604 ].

Case No. 37

Preman v. Emperor, AIR 1928 Lah 93

(Shadi Lal C.J. and Addison J.)

In this case the fatal attack was not premeditated and the victims were injured in the heat of passion on a sudden quarrel. There was, however, no fight and the requirements of exception 4 to section 300, Indian Penal Code had not been established. A violent blow was delivered with a, "clang" on the head and therefore the court observed, the assailant must be deemed to have intended to cause bodily injury which he knew was likely to cause death. Conviction under section 302 was upheld, but sentence was reduced from death to transportation for life.

Case No. 38

Harnamun v. Emperor, AIR 1928 Lah 855

(Shadi Lal C.J. and Coldstream J.)

(Judgment by Shadi Lal C.J.)

The accused and one K killed one Narain Singh and his wife while they were sleeping on the roof. K was attacking the husband and the accused was seen striking the wife with a hatchet in his hand. Blood stained clothes were also recovered from the accused. Conviction under section 302 was upheld by the High Court.

As regards sentence, the High Court noted that on the one hand, the accused was responsible directly for the murder of the wife and constructively for that of the husband, and that the double murder was committed after premeditation and in cold blood. On the other hand, the accused was a boy of 17 and, while youth alone was no extenuating circumstance, there was the additional circumstance that the accused had no personal enmity with the victims and was probably a tool in the hands of the victims' enemies who had been acquitted by the Sessions Judge. Hence the sentence was reduced to transportation for life.

Case No. 39

Shafi Khan v. Emperor, AIR 1929 Pat 161: ILR 8 Pat 181

(Courtney-Terrell, C.J. and Macpherson J.)

(Judgment by the Chief Justice)

In this case, 18 persons were convicted by the Sessions Judge under section 302, Indian Penal Code for the murder of a constable M. Two of them were sentenced to death, and the remaining to transportation for life. The facts were these. The accused who had been sentenced to death had long been suspected as dangerous criminals implicated in various dacoities and robberies. There were complaints of thefts against them, and also a proceeding under section 110 Cr. P.C.1 pending against them. One prosecution witness in one of these proceedings lodged an information at a police station, charging the appellants and other unknown persons with the theft of 6 bullocks.

The F.I.R. was recorded and a police party sent to the village for investigation. Thereafter, a party consisting of constable M (deceased) and another constable, etc., was sent to arrest the appellants by the Sub-Inspector. Two hours after this, the Sub-inspector himself, set out, taking with him a shot gun and six cartridges. When he arrived near the place, he heard an outcry that the constables he had sent had been beaten. He went to the spot and found the constable M (deceased) with his arm broken and bound in a sling, and the other constable had marks of lathi blows.

It appears that constable M when he tried to arrest appellants S and I was resisted, and then about 14 or 15 men including the appellants ran up with lathis and beat the constables inflicting the injuries. The Sub-Inspector, again, after recording the F.I.R. for this incident, went in the direction of the house of appellant S for investigating the matter of the theft and for arresting the appellants. His party was again opposed by a big mob of persons armed with spears and lathis.

The Sub-Inspector's party included the injured constable, M. M tried to remonstrate with the mob, but he was immediately struck down by a spear wound in the chest and a lathi blow on the head, each of which wounds was separately of a fatal character. The attack by the mob still continued, and the Sub-Inspector had to fire. Three persons in the mob, R, S and J armed with spears, took refuge in a house, R, S and J were arrested by force by the police.

The High Court, while confirming the conviction, rejected the argument that those appellants who had been sentenced to death should be awarded the lesser sentence. The argument was, that where a large number of persons had participated in a murder and where it may be undesirable that a large number should undergo the death penalty, only those who took the active part were selected for death penalty. The High Court rejected this as unsound. In its opinion prima facie all the persons convicted should be sentenced to death penalty, and it was only where special circumstances were shown in favour of any individual that the court should sentence him to the lesser penalty.

There were no special circumstances in favour of the appellants who were sentenced to death. In its opinion, R, S and J armed with lethal weapons and taking a foremost place in the assault should also have been sentenced to death, but it was not the practice of the Court, except in extreme cases, to enhance the sentence. (Hence their sentence was not enhanced).

1. Judgment through slip mentions Indian Penal Code.

Case No. 40

Emp. v. Dukari Chandra Karmakar, AIR 1930 Cal 193: 33 CW No. 1226

(C.C. Chose J. on difference of opinion between Cuming J. and S.K. Chose J.)

Accused was charged with murdering his wife. The wife was staying with her father, and apparently there was at the time of marriage some arrangement that accused should stay with the father-in-law (as a ghar-jamai). The accused was not satisfied with this arrangement, and went away to his house. The girl remained with her father, though she did go to her husband's house from time to time. Relations between the accused and the father-in-law were not cordial. On the day of occurrence, the accused went to his father-in-law's house and stayed there for a day and also on the next day.

Next day evening he went out returned at night, and, after taking his meal retired to the upper room, where his wife joined him; and the door was bolted. Next morning, the aunt of the wife, seeing that the wife did not come down, went upstairs to call her. On pushing the door, she found the wife dead in a pool of blood with a number of wounds. The accused was not there. He remained absconding for six weeks and surrendered himself after a proclamation was issued and his property attached.

On these facts, in the Sessions Court, five members of the Jury found him not guilty and the remaining four found him guilty. The Sessions Judge referred the case to the High Court under section 307, Criminal Procedure Code. Both the Judges hearing the reference in the High Court agreed about the guilt of the accused; but there was difference of opinion about the sentence. Coming J. observing that it was a cruel and brutal murder perpetrated apparently without motive on a defenceless girl in her sleep, thought that there was no ground for not giving him the sentence of death. Quoting section 367(5) Criminal Procedure Code (as it stood then), he observed.-

"It is clear that the sentence of death has been considered as the normal sentence and the sentence of transportation for life as the abnormal sentence for which reasons are required to be given."

S.K. Ghose J1 regarded the sentence of transportation for life as sufficient. First, he pointed out, the murder was committed in a fit of desperate resentment in circumstances for which the accused was not entirely to be blamed. Secondly, the accused had borne a uniformly good character, had been good towards his wife's relations and not outwardly quarrelsome. Thirdly, his last visit was one of many that had ended in failure. Fourthly, it was found that the weapon had not been taken by the accused, but was already there in the room, being a sacrificial knife kept in the room. (The father-in-law of the accused was a professional sacrificer, who kept the knife there to avoid its use by children.)

The provision in the Criminal Procedure Code, section 367, was regarded by S.K. Ghose J. as a one of procedure only. It did not take away the Court's duty to see that in a particular case the punishment fitted the crime. Reasons for death sentence, it was true, were not required to be stated by any express provision in section 367, "but these reasons must exist in the mind of the Judge. It is unthinkable that the Judge will pass a sentence of death in preference to the alternative sentence without good and sufficient reasons.".

The matter was referred to C.C. Ghose J. owing to this difference of opinion. C.C. Ghose J. agreed with S.K. Ghose J. that the facts of the case justified the lesser sentence, because the accused committed the murder in the fit of desperate resentment, and was a mere lad of 20 years. Moreover, his repeated visits had ended in failure. "The question of appraising the sentence to be passed on a prisoner is at all times a difficult one. But I think in this case it would not be straining the language of section 367 if I were to hold that the prisoner should be sentenced to transportation for life." (Apparently, he agreed with S.K. Chose J. on the interpretation of section 367 Criminal Procedure Code also, though the point is not discussed in his judgment.)

1. The Judgement of S.K. Ghose J. was regarded as illuminating by the editor of the CWN See (1929) 33 CWN (journal) 185.

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