Report No. 35
Case No. 61
Serajuddin v. State, AIR 1951 All 834 (836)
As in awarding any other sentence, a judge who passes a sentence of death has to apply his judicial mind. The fact that he has to record reasons for awarding the lesser sentence (under section 367 Criminal Procedure Code) merely means that where no such reason is available, the sentence of death has to be passed. It is only to this limited extent that death sentence is the normal sentence for a capital offence.
The Indian Penal Code leaves it to the Judge's judicial discretion to decide whether he should pass a sentence of death or transportation for life (or any other sentence permissible under law). He has to consider the question whether the case is one where a sentence of death should be passed or a lesser sentence, though no Judge would pass a sentence of death (where it is proper to pass a lesser sentence) merely because he has to give reasons for the lesser sentence.
Case No. 62
Palaniswami Goundan (in re:), AIR 1952 Mad 175
(Govinda Menon and Chandra Reddy JJ.)
(Judgment by Govinda Menon J.)
Accused murdered his wife and father and injured his son. Though the accused was not held to be of unsound mind, yet there was an evidence that he had so a kind of frenzy or hallucination. Sentence of death was reduced to transportation for life.
Case No. 63
State v. Kochan Chellayyan, AIR 1954 Trav.-Cochin 435: ILR 1953 TC 1062
(Koshi C.J. and Kumara Pillai J.)
(Judgment by Koshi C.J.)
Under the Travancore Penal Code, as amended by Proclamation of 11th November, 1944, rigorous imprisonment for life was the only sentence to be passed for murder. But after the passing of the Part B States Laws Act, 1951 a person convicted for murder committed after that date can be sentenced only to death or transportation for life.
Case No. 64
Vijayan v. State, AIR 1953 Trav.-Cochin 402: ILR 1053 (1) PC 514
(Koshi C.J. and Menon J.)
(Judgment by Koshi C.J.)
(i) The Travancore Proclamation of 11th November, 1944 and the Cochine Proclamation of 26th November, 1944, abolishing death sentence, were no longer good law after the extension of the Indian Penal Code and Criminal Procedure Code under legislation of 1951. Under the Indian Penal Code, the death penalty was the normal punishment for murder.
(ii) Youth by itself is not an extenuating circumstance.
Case No. 65
Mool Chand v. State, AIR 1953 All 220: ILR (1953) 1 All 608
(Raghubar Dayal and C.B. Aggarwala JJ.)
(Judgment by Aggarwala J.)
In this case, M aged 22 and P aged 30 years appealed to the Allahabad High Court against their conviction under section 302 and under section 302 read with section 34 respectively and the sentences of death. The appellants along with others were tried for murdering one N while N was sleeping on a cot in a field. The others were acquitted, but the appellants convicted as above.
There was some dispute about land, which was the motive behind the murder. The actual attack was by appellant M and another Brij Lal, while appellant P and another Ram Naresh held the feet of the deceased to facilitate his being killed. One or two person, who could not be recognised, armed with lathis were standing nearby. The main question discussed in the appeal was about sentence (The convictions were upheld).
Aggrawala J. maintained that section 367(5), Criminal Procedure Code (as it stood then) gave an absolute discretion to the court as regards imposing the sentence of death. He also expressed the view that the Judge had to keep pace with the times1, that capital punishment was being discouraged and there was nothing in the law to prevent his discretion being exercised by a judge. In consonance with the more humanitarian view of the modem age. The discretion which the judge had should be exercised to ensure social justice.
He gave a list of some of the cases in which the lesser penalty was awarded. "To my mind the true principle of exercising the discretion of imposing either the penalty of death or of transportation for life should be that the sentence of death is awarded in cases in which the act is very brutal and highly repugnant to morals and the sentence of transportation for life is imposed in all other cases"
In his view, out of the four classes of murder mentioned in section 300 and its four clauses, the sentence of death should be restricted to
(i) Cases under section 300(a) intention to cause death, because it is always brutal and barbarous to intentionally kill others.
(ii) As regards section 300-clauses (b), (c) and (d) in cases where the injuries caused are brutal or action of the accused is highly repugnant. In other cases transportation should be imposed.
Even where death should be the ordinary penalty according to the above classification, transportation should be imposed in certain circumstances. But he took care to observe that it is not possible to enumerate the circumstances exhaustively or to lay down any hard and fast rule. Each case will have to be decided on its own facts. Some of the cases enumerated by 'him as fit for lesser penalty were-
(1) where the accused is very young or too old. "I would normally consider that a young man below 18 should be considered too young for death sentence. Similarly a person above the age of 70 be too old for death sentence;
(2) where persons under 20 acting on the instigation or influence of elders;
(3) where murder is committed during a sudden quarrel and without premeditation or on the impUlse, though the case does not fall under the exceptions to section 300;
(4) when conduct of the deceased furnished grave though not sudden provocation. For example, aggrieved husband or other near relation of a woman murders a man who persists in offending the feelings of the aggrieved relative by publicly carrying an immoral intrigue with the woman;
(5) Where the liability is vicarious and the accused neither took part in the beating nor instigated others to do so;
(6) Several persons are involved in the murder and only one death is caused and the actions of several accused are capable of being graded in the matter of causing death. For example, where one person inflicts injuries which bring about the death and others merely help the former or perform a minor act. In such a case the others would be sentenced to transportation unless they were the ring-leaders.
Though the murder may be premeditated the person who actually wields the instrument with which he causes death may be presumed to be more brutal than the others. On these principles, in his view, the appellant P who merely held the legs of the deceased and was aged 20 years only should be sentenced to transportation for life instead of death.
Raghubar Dayal J. did not agree with the view that section 367(5) left any discretion to the Court. He cited several cases2 on the subject in support of the proposition that the normal sentence is death (for capital offences). In his view, the provisions in the Indian Penal Code and Criminal Procedure had been consistently interpreted to mean that in the absence of extenuating circumstances death was the normal sentence.
In his opinion, the fact that the appellant P was merely standing nearby was not a justification for awarding the lesser sentence. [He referred to have discussed the Federal Court case of Rajagopalan." 3]
However, in view of his brother Judge's opinion, that the sentence of death passed on P be commuted to transportation for life, he agreed with the order proposed for such commutation.
1. Contrast, AIR 1939 Mad 109 (112).
2. Local Government v. Sitrya Arjuna, AIR 1933 Nag 307; Ramudu (in re:), AIR 1943 Mad 69 (71): ILR 1343 Mad 148; Gurdev Singh v. Emp., AIR 1948 Lah 58 (61, 62) (Munir J.); Naresh Singh v. Emp., AIR 1935 Oudh 265.
3. Rajagopalan v. Emperor, 1944 FCR 169: AIR 1944 FC 35.
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