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Report No. 35

Case No. 56

Gurdev Singh v. Emperor, AIR 1948 Lah 58

(Muhammad Munir and Mohd. Jan JJ.)

(Judgment by the former.)

In this case, the High Court enhanced the sentence of three persons from transportation for life to death.

The Sessions Judge, while convicting them of murder under section 302 and 148, Indian Penal Code had imposed the sentence of transportation for life on the ground that all the accused were young men of 20 or below and none of the injuries inflicted to the deceased were individually fatal. The High Court strongly criticised this attitude. The normal sentence for murder was death; the Judge could give reasons for imposing the lesser penalty but the reasons given by him were not conclusive and were open to revision.

"It is only when any well recognised ground is found to exist that the judge is justified in withholding the capital punishment". (The High Court then proceeded to enumerate a few extenuating circumstances1 but it made it clear that the classification was not exhaustive or absolute). It regarded age as insufficient ground for leniency, since the offenders were not of extreme youth and had not acted under influence of any elder. The fact that the injuries were not individually fatal, was also regarded as irrelevant to sentence (though it might be relevant on the question where the offence was murder).

Again, the Sessions Judge had expressed the view that it would be extremely hard to send all the four accused to gallows. The High Court pointed out, that every sentence worked hardship on the man sentenced and on others. But that was not a circumstance that ever entered into a judicial determination of the sentence to be awarded. Sentence enhanced to death.

1. Para. 8 in the AIR.

Case No. 57

Kali Charan v. Emperor, AIR 1948 Nag 20(2): ILR 1947 Nag 226

(Hemeon and Padhya JJ.)

The accused committed 4 murders in succession and was sentenced by the Sessions Judge after conviction under section 302 to death. The persons murdered were one woman and three children. It appears that he was not on good terms with his wife, and because of their bad relations, the wife left his house to stay with her sister. In spite of his request she did not return. This had enraged him. Next morning the wife wanted some money and made a request to the accused, whereupon the accused got enraged and threw the keys on her.

The wife picked up the keys and went near the money box. This further enraged the accused, who, (to prevent and punish his wife) proceeded to the first floor where the box was kept. The minor son of the brother-in-law (wife's brother) of the accused was the first to be the subject of the anger of the accused, who killed him by causing not less than 13 injuries with a sharp knife. He then attacked his wife. When his wife was rescued by the wife of his brother-in-law with a daughter in the lap, they were killed by the accused. The accused also injured another young daughter of the accused's brother-in-law.

On his appeal to the High Court, the High Court confirmed the conviction. A plea of insanity was taken on behalf of the accused in the Appellate Court, though not in the lower court. The Court held that insanity of the nature required by section 84 of the Penal Code had not been proved. A crime is not excused by its own atrocity. No expert had been called to prove his mental condition, and a mere opinion by one Doctor that the accused may have been in a temporary fit of mania at the time of the incident did not help very much. The Court was, however, of the opinion that the sentence ought to be altered to one of transportation for life.

The accused had no motive to kill the woman and her three children. The motive, if any, was against the wife, who however was not killed. It was in evidence that the accused loved and used to feed the children killed by him. There was no prearrangement, no accomplice and no secrecy. Under a strong and sudden impulse without any motive he had committed the murders. He was completely unhinged, and had lost the balance of his mind, and acted abnormally under an impulse which proved too strong for him. These were extenuating circumstances which impelled the Court to modify the sentence. The Court reduced the sentence to transportation for life and also recommended to the Provincial Government that the case may be dealt with under section 401, Cr. P.C.

As precedents for its recommendation, it cited the following cases:-

(1) Tola Ram v. Emperor, AIR 1927 Lah 674: ILR 8 Lah 684;

(2) Emperor v. Gedka Goala, AIR 1937 Pat 363: ILR 16 Pat 333;

(3) Ramadhin v. Emperor, AIR 1932 Oudh 18: ILR 7 Luck 341.

Case No. 58

Amru v. The Crown, AIR 1950 East Punj 159

(Kapur and Soni JJ.)

(Judgment by Kapur J.)

The appellant and one R attacked B, using a kirpan and a barchha. B received 24 injuries and died instantaneously. Motive of the crime was dispute regarding mutation of certain estates gifted in favour of R and others. The Additional Sessions Judge convicted the appellant of the offence under section 302 Indian Penal Code and sentenced him to transportation for life. His reason for imposing the lesser sentence was, that the appellant was not related to B, (the deceased) and did not stand to gain by the murder but took part in the murder simply to oblige R.

On appeal to the High Court, the High Court confirmed the conviction and regarded the above reason for imposing the lesser sentence as inadequate. The murder was of a brutal kind and there were no extenuating circumstances. That appellant did not stand to gain was not such a circumstance. However, though the State made an application for enhancement of the sentence, High Court did not grant it, considering the fact that the appellant had been convicted more than a year ago.

Case No. 59

Charan Das v. State, AIR 1950 East Punj 321

(Khosla and Soni JJ.)

(Judgment by Khosla J.)

Information was received that gambling was going on in a tent in the Refugee Camp at Muktsar. The Camp Commandant sent a party to make an inquiry. The party arrived outside the tent and surrounded it. Harnam Singh, Havildar of the National Volunteer Corps and Charan Das, the appellant (of the same Corps) constituted the party along with the Supervisor, Refugee Camp and one other person. Directions were given to the inmates of the tent not to move out, on which they protested. One of them tried to get out.

Thereupon Harnam Singh, the Havildar, gave orders to fire. Charan Das, the appellant, one of the armed constables under the Havildar, fired as a result of which one Nand a woman Rani were injured. Rani succumbed to her injuries. On these facts Charan Das and Harnam Singh were tried before the Additional Sessions Judge, Ferozepur. Charan Das was charged under section 302, Indian penal Code and Harnam Singh under section 302 read with section 34, Indian Penal Code. The Sessions Judge acquitted Harnam Singh, but convicted Charan Das under section 302 and sentenced him to transportation for life.

On appeal to the High Court, the High Court maintained the conviction. The defence of the appellant was that he had acted in obedience to the orders of his superior. But the order, the High Court pointed out, was manifestly illegal. There was no disorderly crowd, nor murder. There was merely a suspicion of gambling. An order of firing could not be given in such circumstances. Therefore, the appellant could not be exonerated. (A soldier cannot plead manifestly illegal orders of his superior as a defence (English-Indian cases discussed).

Since, however, the appellant was a youth of 20, recruited to the National Volunteer Corps, who had an exaggerated notion of his duties and of the authority wielded by his superior, the Court stated that while it could not reduce the sentence of transportation which was the minimum required by law, it recommended to the State Government to reduce the sentence to three Years' rigorous imprisonment under section 401, Criminal Procedure Code. The case was not one of ordinary murder and hence this recommendation1.

1. See also Subba, ILR 21 Mad 249 as to obedience to orders of superiors.

Case No. 60

Ulla v. The King, AIR 1950 Ori 261: ILR 1950 Cutt 293

(Jagannadhadas and Panigrahi JJ.)

(Judgment by Panigrahi J.)

In this case a boy of 12 years was convicted of murder. This boy, Ulla, was plucking palm-fruit from a tree standing on his land. He was assisted in this by two other boys. One of them was eating the fruit that had fallen on the ground. At that time, the deceased boy, Ranka, arrived with another boy and picked up a fruit from the ground, whereupon the appellant Ulla protested and demanded its price. Ranka threw the fruit and remarked that he would cut the appellant in pieces if the appellant ever went to the "Tope" (the place concerned) to pluck fruits.

At this remark the appellant got excited and said that he would cut Ranka to pieces, and actually struck Ranka with a "Kahi" on left Aside of the chest just below the collar bone. Ranka fell down and died on the spot. The appellant was convicted under section 302 and sentenced to transportation for life. The Child witnesses we believed, whose evidence found corroboration in Doctor's statement.

On appeal to the High Court, the conviction was confirmed. The argument that the offence was one of culpable homicide not amounting to murder because of provocation was rejected on the facts. There was more verbal provocation in this case and it was not sufficient to cause loss of self-control. But in view of the tender age of the appellant, the High Court under section 8 of the Reformatory Schools Act, 1897 recommended detention in a reformatory school for five years (instead of transportation for life).

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