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Report No. 35

Case No. 96

Balbir Singh v. State, AIR 1959 Punj 332: ILR 1959 Punj 1473

(Khosla and Tek Chand JJ.)

(Judgment by Tek Chand J.)

The accused was carrying on intrigues with a lady teacher in the Government Girls Middle School. He suspected that M was also carrying on intrigues with that lady teacher, and became jealous and exhorted the teacher not to associate with M. The teacher persisted in mixing with M, and the accused left her in anger. The teacher wrote a letter to him that she would not have anything more to do with M, but did not give up relations with M.

On the day of occurrence M came to her, stayed with her and the two had meals together. At about 3.30 p.m. the accused came (all the way from Delhi) and knocked at the door of the teacher's house which was chained from within. The teacher advised M to conceal himself behind the outer door, so that M could escape while accused entered. (She had recognised the voice of the accused). The accused, suspecting that she was not alone, insisted that he should bring some light. At that time M came up and caught hold of the accused by the neck, whereupon the accused attacked M with a "Chhura" (dagger), and M died on the spot.

The accused was convicted of murder under section 302, Indian Penal Code by the Session Judge, Jullundur, who awarded him the lesser penalty of imprisonment for life.....

On appeal to the High Court, an argument was advanced about self-defence (sections 100, 300, Exception 2, Indian Penal Code.) The High Court held, that on the facts there was no right of self-defence. It did not believe the version that M had attacked the accused. But even if that was true, that could not have caused in the mind of the accused an apprehension of death or of grievous hurt.

M was unarmed, and on being taken unawares by the accused, wanted to make good his escape. He was standing behind the door so that he could run away. The accused was not budging from the threshold, and was insisting on coming face to face with his rival. "The moment he cast eyes on him, he did not leave him till he had drawn blood by having given him no less than 16 thrusts with his chhura."

There was not a semblance of the existence of the right of private defence. The attack was without a warning, savage and unsparing and pursued from the start to the finish with unaliated vigour and undiminished fury1. As regards the sentence it observed:-

"The Sessions Judge has already awarded him the lesser penalty and therefore there is no further scope for any interference with the sentence".

1. See para. 32 in the AIR.

Case No. 97

Jai Ram v. State, AIR 1959 Bom 463: ILR 1959 Bom 1580: 61 Bom LR 35

(Mudholkar and Kotwal JJ.)

(Judgment by Mudholkar J.)

The appellant was tried for the offence of the murder of his wife. They used to quarrel quite often. On the morning of the date of offence, the appellant went to a field where his wife and others were carrying on weeding operations. When the appellant saw his wife, he talked with her and struck her five or seven times with a knife, causing serious injuries leading to her death the very day.

The appellant's defence was that his wife was a woman of loose character, that the previous night he had seen her entering the house of a relation of one P with whom his wife was carrying on intrigues, and that he also saw her coming out of that house at about 1 a.m. Next morning, when he went to the field, he asked his wife whether she had gone to the house in question on the previous night. The wife replied, "yes, I will go: it is my sweet will. If you feel it so much then I will begin residing with P (the man with whom she was supposed to have been carrying on intrigue)".

The appellant tried to persuade his wife to improve her ways, but she said "if you are so much ashamed, then get away from here. Why have you come here and also used foul language". This enraged the accused and he caught her hand; the wife retaliated by kicking him, whereupon he lost his self-control and committed the offence. He therefore pleaded exception 1 to section 300. This plea failed.

He was convicted under section 302, but awarded the lesser sentence of imprisonment for life. On appeal to the High Court, the High Court rejected the defence of grave and sudden provocation. If the appellant did not lose his self-control the previous night and was thus sufficiently strong willed, it was difficult to accept the statement that he lost his power by reason of something less grave which happened in the field later in the morning. Apart from that, what occurred in the field could not ordinarily be regarded as grave and sudden provocation. (Passage from Holmes v. D.P.P. (1946) 1 All ER 124: 1946 AC 488. that mere words do not amount to provocation cited)1

The High Court observed, that it would be extremely hazardous to apply the First Exception to section 300 to a case of the kind merely on the ground that offences against marital rights are made punishable by law in India. What was to be considered was whether provocation was of a kind which would cause a reasonable man belonging to the social stratum of the accused to lose his self-control.

Adultery though frowned upon in India, was not uncommon in the village community and even before the law provided for obtaining a divorce, a customary form of divorce prevailed in the village communities. Bearing in mind these considerations it would not be right to hold that the reaction of an Indian spouse from such a community would be different from that of one in the western countries.

Conviction upheld. As regards the sentence, the court observed:-

"He has already been awarded the lesser sentence, and therefore there is nothing more that can be done"-.

1. Also cited, Murgian (in re:), AIR 1957 Mad 541.

Case No. 98

U. Kannan v. State, AIR 1960 Ker 24.

(Sankaran C.J. and Anna Chandy J.)

(Judgment by Anna Chandy J.)

In this case the accused was convicted by the Sessions Judge under section 302, Indian Penal Code and sentenced to imprisonment for life. His defence of insanity had been rejected by the Sessions Court. The case was one of murder by the accused aged 45 of his mother aged 70. The only evidence of motive was that the accused used to quarrel frequently with his mother over the quality of food which she used to serve. (The accused was unmarried).

On appeal to the High Court, the High Court on the facts accepted his plea of insanity. It regarded the case as one of epileptic insanity. The cousin of the accused and other relations had given evidence that the accused used to suffer frequently from epileptic fits. The cousin also swore that the accused would begin to show signs of madness about 24 hours before the actual fits and during these periods the accused used to abuse his mother and rush out of his house like a mad man, and that when the fits occurred the accused would fall down unconscious and get up about half-an-hour later recovered.

There was also evidence that there were signs of an approaching epileptic seizure noted on the day in question. The accused made no attempt to conceal his crime. When the police arrived, he was found sitting in the compound quietly and with his dress and hands smeared with blood. Multiple instruments had been used (bill-hook, wooden reaper and a stick of fire-wood).

The facts showed that he was committing the murder at a time when he was incapable of knowing that he was doing something that was wrong or contrary to law. The case fell under section 84, Indian Penal Code and in accordance with section 471, Criminal Procedure Code, an order was issued for his detention in safe custody in jail and reporting the matter to the State Government for further necessary action.

Case No. 99

Natesan (in re:), AIR 1960 Mad 443

(Ramaswami and Anantanarayanan JJ.)

(Judgment and Anantanarayanan J.)

In this case the accused, a young man of 22, was convicted of the murder of a young girl. The girl aged 19 had been married 6 months ago to N. The accused had, some time before the crime, attempted to take liberties with the girl. (The girl had informed her husband who however regarded the matter as trivial). Again, shortly before the crime, when the girl was drawing water from a well, the accused patted her on the cheek and attempted to engage her in conversation in an improper manner.

This was reported to the husband, and the two families ceased to be on talking terms. On the day of occurrence when the girl was alone in her portion of the house, the accused stabbed her. Apparently the accused had made some kind of overture and the girl resisted, whereupon the accused inflicted the injuries with a knife. Soon after the murder, the accused stabbed himself in an attempt to commit suicide.

The High Court while confirming the conviction, also refused to reduce the sentence of death and pointed out that it was a very brutal and cruel murder of an innocent girl. Age of the accused (22) was urged as a ground for lesser sentence, but youth, is not a circumstance1 that the Court can take into account in awarding the penalty. That must be considered by the authorities of the State in exercising their prerogative of mercy. The attempt at suicide was also not regarded as an extenuating circumstance.

1. There are however cases where sentence was reduced only on account of age. See-

(i) Mohan Lal v. Emperor, AIR 1931 Lah 177 (Addison & Cold-stream JJ.) (Age "not much more than 16".)

(ii) Prem v. Narain State, AIR 1957 All 177 (Mukerji & Choudhry JJ.) (Age "nearer 17 than 20").

(iii) Naga Saw Htun v. Emperor, AIR 1937 Rang 121 (123), (Accused had just completed 16 years. Hence section 15, Burma Prevention of Crime (Young Offenders) Act, 1930 did not apply. Still, the Court regarded the sentence of death as not suitable, notwithstanding that the murder was brutal (wound on neck with a "da"). (Motive was rivalry in love). Court observed that the legislation of 1930 indicated that there was a considerable amount of public conscience against sentence of death (persons of immature age.)

(iv) Mohammed Din v. Crown, 1937 ILR 18 Lah 658 (661). (Young C.J. and Monroe J.) (Age-15 1/2 years-evidence of provocation also-sentence reduced)-Court observed that youth of the appellants was "sufficiently strong reason".

(v) Madho v. Emperor, AIR 1926 Nag 461 (Findlay J.C. and Prideanx A.J.C. (Age-14 years Murder of boy of 8 by strangling sentence reduced on account of age.

Case No. 100

Arun Kumar v. State, AIR 1962 Cal 504 (509)

(P.B. Mukerji and N.K. Sen JJ.)

(Judgment by Mukerji J.)

Capital Punishment-lesser penalty where evidence not clear as to blow.

In this, the evidence did not make it clear which of the two appellants gave the fatal blow or did the last act of strangulation. While the conviction for murder was upheld, the sentence was altered to life imprisonment. The court followed the principle laid down by the Supreme Court in Dalip Singh v. State of Punjab, AIR 1953 SC 364 (368)., where the following observations had been made:-

"This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who take a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment.

It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been, if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in the case

Case No. 101

Amalla Koleswara Rao (in re), AIR 1963 AP 249

(Basi Reddy and Muhammad Mirza JJ.)

(Judgment by Basi Reddy J.)

Since the amendment of section 367 Criminal Procedure Code in 1955 the theory that death is the normal sentence for capital offences does not hold good. If there are aggravating circumstances, death must be imposed in the larger interests of the society. If there are no aggravating circumstances, the Court would be justified in giving the lesser sentence. The fact that human life has been taken does not justify the imposition of the extreme penalty of death.1

1. Compare Mojiya v. State, AIR 1961 MP 10, where it was emphasised that though (after the amendment of section 367 Criminal Procedure Code) there is no direction for recording reasons for imposing lesser sentence still Courts are not absolved of exercising their judicial conscience as to whether the extreme penalty should be awarded or only the life sentence.

To the same effect is Arjoon v. State, (1963) 2 Cr LJ 231 (237) (Orissa) citing Ram Singh v. State, AIR 1960 All 748.

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