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Report No. 35

Case No. 66

Govindaswami (in re:), AIR 1953 Mad 372

(Govind Menon and Mack JJ.)

(Judgment by Mack J.)

This was a case of double murder by a youth aged 16. He murdered one G by cutting his neck with an "aruval" (Knife) (served knife or sickle) while G was asleep. Thereafter, he also cut one M while M was asleep in his house on the other side of the street. M also died instantaneously. (The present case was tried only as regards the murder of G). The accused was convicted of the murder under section 302, but the Sessions Judge sentenced him to transportation for life only, as the accused had committed the murder in the fear that G was intending to make a report against him at the police station regarding some theft committed by the accused.

Mack J. dismissed the appeal against the conviction. He had also issued notice for enhancement of sentence. But as Govind Menon J. was reluctant to interfere in such a case for enhancing the sentence, Mack J. "though prepared to do that unpleasant duty," yet (out of defererice to brother's view) merely dismissed the appeal without enhancement of sentence.

He, however, pointed out to the Sessions Judge that the ordinary penalty for murder is a death sentence in the absence of extenuating circumstances, and that in the instant case there was no extenuating circumstance and neither the youth of the accused nor the fear of a complaint being made against him of theft could be taken into consideration as an extenuating circumstance.

Case No. 67

Kanji v. State, AIR 1953 Raj 40: ILR 1951 Raj 727

(Wanchoo C.J. and Ranawat J.)

(Judgment by Wanchoo C.J.)

The appellant in this case was convicted of murder of a boy aged 14 years and sentenced to death by the Sessions Judge. A marriage party had come to the village and was staying in a mango-grove (bageechi). In that connection, a lot of drinking had been going on since the morning, and the appellant was also one of those who had been drinking.

At about 6 p.m. while the deceased boy was picking raw mangoes in the "bageechi" with another boy, the appellant turned up in the bageechi with a gun, went past the people who were sitting there and suddenly shot at the boy from a distance of about 10 paces. The boy fell down and died. The other boy was slightly injured.

The appellant's theory was, that the gun went off by accident and that he was intoxicated and did not know what happened, because he was not in his senses.

These pleas were not accepted by the Sessions Judge. On appeal to the High Court, the High Court also did not accept the pleas on the facts. It also pointed out, that under section 300, Fourth Exception, Indian Penal Code read with illustration (d), an imminently dangerous act was sufficient to bring the case within section 300 and it was not necessary that the gun should be aimed at a particular person. In the case before the court, further the evidence was that the appellant shot at the boy. Where a person takes the risk of shooting at another, the act would ordinarily be an imminently dangerous act which just in all probability cause death etc.

However, as regards the sentence the High Court pointed out two important features of the case:-

(i) There was no satisfactory evidence of motive. (The father of the deceased had deposed that the deceased had told the father that the deceased had accidentally found the appellant having sexual intercourse with his widowed sister-in-law). Assuming that this was admissible, the High Court was hesitant to accept this as a motive, and held that there was no clear motive.

(ii) Though the appellant was responsible for the natural consequences of his acts and guilty under section 302, in the circumstances of the case intoxication afforded as a sufficient excuse for not exacting the extreme penalty of law. Since there was no evidence for motive and the appellant was certainly drunk, the sentence was reduced to transportation for life1. In support of the reduction of sentence in case of intoxication, the following cases were cited:-

(a) Pal Singh v. Emperor, AIR 1917 Lah 226; and

(b) Judagi Mallah v. Emperor, AIR 1930 Pat 168.

1. For similar facts in a latter PEPSU case where this Rajasthan case is cited see-

Basdev v. State, AIR 1955 PEPSU 165 (169, 170), paras. 24, 26, where also the lesser sentence was held as justified. It cited several cases also as to effect of intoxication.

Case No. 68

Gudder Singh v. State, AIR 1954 Punj 37: ILR 1954 Punj 649

Falshaw and Kapur JJ.

(Judgment by Kapur J.)

G and B were convicted of murder in these circumstances. Certain people had refused to pay land revenue. The Tehsildar advised them to pay up the land revenue. He also asked them to produce the rifles which the Government of India had given to villagers under the Border Defence Scheme at the time of the formation of Pakistan. After some time,* or 80 persons of the village including G and B, came armed and stopped at a distance of 15 or 20 Karams from the place where the Tehsildar and others were.

They shouted to G and B and others to kill Revenue and Police officials. Sub-Inspector K tried to pacify them, and while he was so doing, G fired his rifle which hit K in his chest and K fell down dead. Other people started firing, and the Police took up positions for firing in self-defence. Ultimately the villagers retreated.

(Subsequent events are not relevant).

G and B were convicted under section 302, Indian Penal Code for the murder of K. G was sentenced to death and B was sentenced to transportation for life. The High Court dismissed their appeals as regards the conviction. As regards the sentence on G, because of the fact that he had been in custody from May, 1951, the High Court substituted transportation for life in place of death.

Case No. 69

Muniyandi (in re:), AIR 1954 Mad 196

(Mack and Chandra Reddy JJ.

(Judgment by Mack J.)

The appellant and one X intercepted two persons, accountants in the firm of Cannon Dunkerly who were carrying Rs. 5,600 in cash on cycle. The appellant was armed with a knife and X was armed with a revolver. X got hold of the cycle and asked one of the accountants to stop. That accountant jumped off the cycle. The other accountant riding the cycle lost his balance and fell down, and shouted for help, when X fired four shots at him, which resulted in his death instantaneously. Immediately, the appellant went to remove the money bag. The accountant tried to prevent him, whereupon the appellant cut him with knife on the hand and snatched away the money bag. Then both the assailants ran away.

Four months after this, X and the appellant happened to be arrested for some other crime, and were identified for this crime also. X had been already sentenced to death for the other crime, and the sentence executed, and this case was now concerned only with the appellant. The Sessions Judge convicted the appellant under section 302 read with section 34, and sentenced him to death and also convicted him under section 392 and sentenced him to 7 years' rigorous imprisonment. (For the other case the appellant had already been sentenced to transportation of life under section 302 read with section 34).

The High Court confirmed the conviction on the merits. The argument, that since there was no pre-arrangement to kill the accountant, the appellant could not be convicted under section 302 read with section 34, was repelled. "When two persons start together for committing robbery and one of them is armed with a revolver and the other with knife, we may presume that the intention of these two persons is to use the weapon if the necessity should arise." Hence, the shooting was committed in furtherance of the common intention and it was unnecessary to established a pre-arranged plan for the murder of the victim.

As regards sentence, having regard to the fact that it was X who fired the shots from a revolver and the injury caused to the surviving accountant by the appellant was of simple nature, the court felt that the ends of justice would be met by reducing the sentence of death to one of transportation for life.

(Note:- (i) As regards section 34, the court referred to B.K. Ghosh v. Emperor, AIR 1925 PC 1: ILR 52 Cal 197 followed in Ramaswami v. State. AIR 1952 Mad 411.

(ii) The judgment records the fact that in the other case X had been sentenced to death and the present appellant was sentenced for transportation for life under section 302 read with section 34. But the court does not seem to have taken that factor as a factor against showing lenience to appellant. The sentences in the present case (transportation for life for 302 and 7 years' rigorous imprisonment for 392) were ordered to run concurrently with the sentences in "two other cases."

Case No. 70

Palani Moopan (in re:), AIR 1955 Mad 495

(Panchapakesa Ayyar and Basheer Ahmed Sayeed JJ.)

(Judgment by the latter).

The appellant aged 24 had been convicted of the murder of his wife aged 20 years, by inflicting Injuries with a tapper's knife and sentenced to death by the Addl. Sessions Judge. It seems that there were some quarrels between the two soon after the marriage in 1953 and the appellant started beating and ill-treating his wife. The appellant shifted to his sister's house leaving his wife in the house.

The appellant made a confession under section 164, Criminal Procedure Code setting out the particulars of the offence and also stating that his wife was in illicit intimacy with his "co-brother-in-law", that there were some misunderstanding between him and his wife; that his wife had tried to poison him and that after he left his house, the co-brother-in-law had a jolly life with his wife. On one occasion, in the "shaddy" (apparently, market) his wife was selling chillies and his co-brother-in-law was sitting near her.

The wife said to the co-brother-in-law "my husband is not keeping me properly. I will come to Mevani tomorrow". This enraged the appellant who tried to drag his wife. The wife said "Who are you to drag me? I will go anywhere". Thereupon the appellant stabbed the wife with the knife.

The High Court, while confirming the conviction under section 302, reduced the sentence to transportation for life on the ground that the appellant was provoked by the insolent answer given by the wife.

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