Vol(2)

[Cites 193, Cited by 0]

Law Commission Report

Vol(2)

b§3ONFIDENTI :11. LD_. 91 x_x}L_v

--'"""--_' 1,863.

 

LAW COMMISSION OE INDIA

THI RTY-FIFTH REPORT

VOLUME ll

(CAPITAL PUNISHMENT)

SEPTEMBER, 1957

GOVERNMENT OF INDIA 9 MINISTRY OF LAW



REPORT ON CAPITAL PUNISHMENT
EXPLANATION OF ABBREVIATION

R. C. Report Report of the Royal Commission on
Capital Punishment (I949-I953).
Cmd. 8932.



APPENDICES

APPENDIX I.---Questionnair issued by the

Law Commission on Capital
Punishment. . . . . '

APPENDIX II.---Analysis of certain illustrative cases in relation to the sentence
imposed for murder. , . . . . .

APPENDIX III.---Table of Abolitionist Countries o1...States, with date of
abolition (Arranged alphabetically) . . .

APPENDIX IV.---Country-wise statement of abolition or retention (Arranged
alphabetically) . . . . .

APPENDIX V.--Capital offences in various countries

APPENDIX VI.--Position regarding Appeals

from Death
in certain countries _

Sentences,

APPENDIX VII.----Provisions regarding pregnant women and death sen-
tence----position in certain other countries .

APPENDIX VIII.---Age and Capital Punishment--_position in certain States
of India and in certain other countrie , .

APPENDIX IX.---Capital Crimes in some countries of the British Commonwealth
(Detailed statement) . . . .

APPENDIX X.--CountI-ies in which death

sentence is mandatory for
certain oﬁences . . . . .

APPENDIX XI .--EXtractS from the Burmese Penal Code, and Analysis of
the Burma provisions . . . . . .
APPENDIX XII.------Ceylon Acts regarding Capital Punishment .

APPENDIX XIII.--Extracts of sections 194,201, and 2o2,Canadian Criminal
ode . . . . . . .

APPENDIX XIV.--Canadian Act of 1961
APPENDIX XV.---Table analysing effect of restoration---Abolition countries
APPENDIX XVI.-Table analysing effect of non-restoration (Abolition countries).

APPENDIX XVII .--Cases of cruel murder , , . , .

APPENDIX XVIII.--Cases of appeals under articles 134 and 136 of the Con-
stitution relevant to the sentence of death

APPENDIX XIX.----Capital crimes in England in the 18th Century
APPENDIX XX.---English Law of Treason
APPENDIX XXI.--Death penalty in Russia

APPENDIX XXII.--Provisions in French Penal Code regarding treason

(i)

PAGE:

3-82

83-'~84

85-88
88-91

92-94

I04'-105

105-108

I09---IIO

III

r12--r17

II8--II9

119-121
121-128
I28--I3o
131-134
134-136

136-166
167--182
183-186
186-188

189-191



(ii)

Pmias
APPENDIX XXIII.--Capital punishment in Hindu Law (Detailed sub-

h¢adsj:.-- I9I--203
(a) Chronology ; . . . . . . 192-193
(iv) Homicide in Hindu Law . . . . 193--194
(5) Capital Punishment in Hindu period . . I94~--I97
(cf) Principles of punishment . . . . 197-198
(4) Classiﬁcation of 1:-unislunent in Hindu Law . I98-199

Q') isiﬁerent kinds of punishment in Hindu
Law . . . . . . 199
(g) Arguments against capital punishment . 200-20:
(52) Capital punishment for various crimes 201
202

(i) References from Mann
Li} Capital Punishment and Buddhist Rules . 2o2---205

(k) Capital Punishment in Maratha period.) . 2o5----2o8

Arrlnmx XXIV.---Capital Punishment in India during the Muslim

per1od--- 208
(2') Introductory . . . . . . 208-2:1
(it) Muslim Law as in force at the advent of the
British rule . . . . . . 212----2.21
AIPINDIX XXV.---Capital Punishment under the British rule, but before
the enactment of the Indian Penal Code . . 22-23 I
APPENDIX XXVI.----List of Capital offences under Bombay Regulation
XIV of 1827, and provisions therein regarding
offences which are new capital . . 231-233
APPENDIX XXVII.---Recommendations of the Indian Law Commis-
sioners . . . . . 234--247
APPENDIX XXVIII.---Amendments relevant to Capital Punishment, after
the passing of the Indian Penal Code (1860) . 247
APPENDIX XXIX.-----INDIA----proportion of murders to one million in~
habitants (1953-4962) . . . . . 248
APPENDIX XXX.- INDIA--McrCy petitions--percentage of petitions in
which death sentence was commuted . . . 248-249
APPENDIX XXXL-'-SUPEREME CoUn'r--Statement of criminal appeals and
special leave petitions involving capital sentence:
(1957 to 30th September, 1963 . . . 250-----254
APPINDIX XXXII.---H:oH_ CoUR'rS_--Statement relating to cases involving
Capital punishment (1957 to 1962) . . . 255-274



(iii)

APPENDIX XXXIII.---INDIA--nu.mber of murder cases (1953-1962),
reported to the police . . . . .

APPINDIX XXXIV.---INn1A--State-wise ﬁgures of homicide cases (with
ﬁgures of two notoriously criminal districts) (1953

to 1962)

APPENDIX XXXV.----INDIA----Tab1e showing noticeable increase in mur-
ders in certain States and cities (1958-1962) -

APPENDIX XXXVI.---INDIA---Graph of murder cases (1953 to 1962)

APPENDIX XXXVII.--INDIA--Detai1ed Analysis of Murders in India

(1951-1961)-
(1') Causes of Murders

(it) Means employed to commit murder

APPENDIX XXXVIII.--IND1A--Number

of kidnapping and abduction
cases (1953-1962) . . . .

APPENDIX XXXIX.--IND1A--Graph of kidnapping cases (1953 to 1962) .
XL.---IN1:>IA---Number of juvenile offenders apprehended

APPENDIX
for murder etc. (1958 to 1962) . . .
APPENDIX XLI.--Abolitionist and retentionist countries, and rates
of homicide, 1962 (Alphabetically arranged)
APPENDIX XLII.---Country-wise rates of homicide, I962 (Countries
arranged continent-wise) . . . .
APPENDIX XLIII.---INn1A--Ana.lysis of sentences passed by Sessions
Judges in capital cases (in certain States) (based
on selected decisions) . . . .
APPENDIX XLIV.---Recommendations for amendments in certain Central

Acts

PAGES

275
276----3I>'
3 I9

320
32I--343
344
345

346
347-35 I
352-354
355-353
364



APPENDIX I

QUESTIONNAIRE rssurzn BY rm: LAW COMMISSION on
CAP-ITAL PUNISHMENT

1. Are you in favour of retention or abolition of capital
punishment?

2. (a) What, in your opinion, is the object of capital
punishment? Does the existing law sufficiently achieve
that object?

(b) In particular, do you think that the sentence of
death acts as a deterrent?

3. (a) Would you like to retain the sentence of death
for all or any of the offences under the Indian Penal Code
which are at present punishable with deathl?

(b) Are there any other oﬁiences under the Indian Penal
Code or any other law which, in your opinion, should be
punishable with death?

4. The relevant provisions in the Indian Penal Code
vest in most cases a discretion in the court to award the
sentence of death or the lesser sentence of imprisonment
for life. Is the vesting of such discretion necessary and
are the provisions conferring such discretion working
satisfactorily? If not, have you any suggestions to make
in this behalf?

5. If the vesting of such discretion is necessary, what
should be the considerations which should weigh with the
court in awarding the lesser punishment of imprisonment
for life? Is it possible to codify such considerations?

6. (a) Is it possible to divide murders into different
categories for the purpose of regulating the punishment
for murder?

1. Th: relevant sections of the Indian Penal Code and the oﬁences
coicerned are as fol1ows:---

Section 121-Waging war against the Government.

Section 132-Abetment of mutiny by a member of the armed forces,

Section 194-2nd paragraph--False evidence leadirg to conviction
of innotent person and his execution.

Section 302---Murder.

Section 303---Murder by a life convfct.

Section 305-Abetment of suicide by child or insane person.
S::t'o1 31'-. -Xttemfit to mwrcier by life convict.

Star" I Dicoity with murder.



2

(b) Is it possible to divide murders into two cate-
gories----
(i) murders punishable with death;
(ii) murders not punishable with death.

If so, what kinds of murders would you include in cate-
gory (i)? «

7. (a) Are you in favour of the view that the normal
sentence for murder should be imprisonment for life, but
in aggravating circumstances the court may award the
sentence of death?

(b) If so, what, in your opinion, should be the aggra-
vating circumstances?

8. Should there be a provision in the law requiring the
court to state its reasons for imposing a sentence of death
or the lesser punishment of imprisonment for life?

9. Do. you consider that even if the sentence of death
is retained, certain classes of persons should not be
punished with death, e.g., children below a particular age,
women, etc.? What classes of persons should, in your
opinion, be excluded from the sentence of death?

10. At present the Supreme Court has limited jurisdic-
tion when a High Court has passed, conﬁrmed or upheld in
appeal a sentence of death (article 134 of the Constitution
and section 411A, Criminal Procedure Code). Are you
in favour of enlarging the powers of the Supreme Court
so that an appeal shall lie to the Supreme Court as a
matter of right in all cases in which a sentence of death
has been passed or conﬁrmed or upheld by the High
Court?

11. (a) Have you any suggestions to make with res-
pect to the power of the President and the Governor to
grant pardon, reprieve, respite or remission in respect of
the punishment of death or to suspend, remit or commute
the sentence of death under articles 72 and 161 of the
Constitution and the power of the Government to suspend,
remit or commute such sentence under sections 401-402,
Criminal Procedure Code?

(b) What, in your opinion, should be the prjnciples
which should guide and the procedure which should be
followed in the exercise of these powers?

12. At present, the sentence of death is carried out by
hanging. Have you any suggestions to make.with respect
to the manner in which a sentence of deathrr ' "carried
out?



3

APPENDIX II

ANALYSIS OF CERTAIN ILLUSTRATIVE CASES IN RELATION TO
THE SENTENCE IMPOSED FOR MURDER

NOTE:----ThiS analysis is not intended to discuss all cases.
It discusses certain illustrative cases--

(i) showing how the discretion regarding death
sentence has been exercised;

(ii) showing how the appellate Court has rectiﬁed
injustice;

(iii) indicating the variety of situations and the
numerous circumstances that have to be considered
while awarding sentence; and

(iv) incidentally, showing certain other points
-2' interest that fell to be decided.



4

CAPITAL PUNISHMENT
NOMINAL INDEX

Analysis of Case

Name of the Case C356 N"-
Amalla Koleshwara Rao (Andhra) , .A , , , _ , , IOI
Amru (East Punjab) . . . . . . . . . . 53
Arun Kumar (Cal.) . . . . . . . . . . I00
Atma Singh (Punjab) . . . . . . . . . . 78
Aung Hla (Rangoon) , , . . . . . . . . 43
Aziz Begum (Lahore) . . . . . . . . . . 52
Balbir Singh (Punjab) . . . . . . . . . . 96
Bandhu (Allahabad) . . . . . . . . . . 32
Bansi (Allahabad) . . . . . . . . . . 79
Banwari (5-C-) . . . . . . . . . . . 23
Basdev (S.C.) . . . . . . . . . . . I2
Basu Tanti (Patna) . . . . . . . . . . 86
Bhadu (All). . . . . . . . . . . . . 29
Bhagwan Din (Oudh) . . . . . . . . . . 41
Brij Bhukhan (S.C.) . . . . . . . . . . I6
Charan Das (East Puniab) . . . . . . . . . 59
Dalip Singh (S.C.) . . . . . . . . . . 3
Dasrath Paswan (Pat.) . . . . . . . . . . 91
Daulan (Lahore) . . . . . . . . . . . 34
Dhaulan (Lahore) . . . . . . . . . . . 47
Dukari Chandra Karmarkar (Cal.) . . . . . . . . 40
Ghulam Iannat (Lahore) , _ , . , , W , , , 33
Govindareddy (Mysore) . . . . . . . . . . 90
Govindaswami (Madras) . . . . . . . . . . 66
Gudder Singh (Punjab) . . . . . . . . . . 68
Gurdev Singh (Lahore) , , . , . . . . . 56
Hafizullah (AIL) . . . . . . . . . . . 84

Harnamun (Lahore) . . . . . . . . . . 38



Name of the Case Case No.

Hazara Singh (Punjab) . . . . . . . . . . 92
joyaji (Bom.) . . . . . . . . . . . 30
Kaim (Sind) . . . . . . . . . . . . 48
Kalawati (S.C.) . . . . . . . . . . _ 2
Kali (AIL) . . . . . . ' . . . . . . 31
Kali Charan (Nagpur) . . . . . . . . . . 57
Kalua (S.C.). . . . . . . . . . . . I8
Kanji (Rajasthan) . . . . . . . . . . . 67
(U) Kannan (Ken) . . . . . . . . . . 98
Karmakar---See Dukari Chandra . , , , , _ , _ 40
Katar Singh (S.C.) . . . . . . . . . . 21
Karat Singh (Lahore) . . . . . . . . . , 45
Kashmira Singh (S.C.) . . . , . , , , _ _ I
Kutuhal (S.C.) . . . . . . , . . . . 5

Khan (Cal.) . . . . . . . . . . . . 71
Kochan Chellayyah (Travancore-Cochin) , , , _ _ _ _ 53
Koleshwar Rao (Andhra) . . . . . . . . . Ior
Mahabir Singh (Cal.) . . . . . . . . . . 54
Mewa ;Lahore) . . . . . . . . . . , 51
Mian Gul (Lahore) . . . . . . . . . . 44
Mizaii (S.C.) . . . . . . . . . . . 19
Mohan (S.C.) . . . . . . . . . . . 20
Miominuddi Sardar (Ca1.) . . . . . . . . . 49
Mool C; and (AIL) . . . . . . . . . . 65
Muniappan (S.C.) . . . . . . . . . . . 25
Munirathnam (Andhra) . . . . . . . . . . 76
Muniyandi (Madras) . . . . . . . . . . 69
Murugian (Madras) . . . . . . . . . . 87

Namdeo (Bom.) . . . . . . . . . . . 74
Nanavati (S.C.) . . . . . . . . . . . 22
Narayanan (S.C.) . . . . . . . . . . . I3

Natcsan (Madras) . . . . . . . . . . . 19

 



 

Name of the Case

Nathu Lal (All.)

Nawab (Lahore)

Nawab Singh (S.C.)
Nilonal Jiban (Cal.)

Nisa Stree (S.C.)
Palaniswami Goundan (Madras)
Palani Mopan (Madras)
Pandurang (S.C.)
Pandurang (Bom.) .
Peethambaran (Kerala)
Piare Dusadh (F.C.)
Pgan Das (S.C.)

Preman (Lahore)

Prem Narain (A11.)
Puttawwa (Mysore)
Raiagopalan (F.C.)
Ramautar Singh (Patna) .
Ram Singh (Lahore)
Raxin Chandra (S.C.)
Ram Nath Lucknow (Oudh) .
Rangappa (Madras)

Rishi Deo (S.C.)

Sabir (A1l.)

Satyavir (Al1.)

Seraiuddin (All.)

Shaﬁ Khan (Patna)
Shankar (Bom.) .
Shﬁanna (Mysore) . .
Shivruddrappa (Bom.)
Sunder (All.)

Sunder Singh (S.C.)
Sunder Lal (S.C.) .

, ._.--.._,_.______..._.

Case No.

75
45

7
49A

62
70

I0



Name of the Case

C215: No.

 

Iai Ram (Bombay) 9';
Talian (Lahore) 5;
Tara Chand (S.C.) 24
Thannoo (AIL) . . . . . 94
Thorhan (Madras) . 82
Tiri (Rangoon) 42
T0121 Ram (Lahore) 36
(Uniri) Kannan (Kerala) 98
Ulia (Orissa) . 60
Vadivelu (S.C.) I7
Venkalu (S.C.) I4
'Viiayan (T ravancore-Cochin) 64
Wazir Singh (S.C.) 15
Subject-wise Index to Analysis of cases
Topic Name Case No.
"Acquittal-- Tara Chand (S.C.) . 24
in article 134

Admission by Counsel Rangappa (Madras) 5o
Advocate murder of . Govinda Reddy (Mysore) 90
Ag e (Murder by boy of 12) Ulla (Orissa) . . . 55
Age (Murder by boy of 16) Govindaswami (Madras) . 55
Age . . . . . Manirathan (Mad.) 70'
Viiayan (T .C.) 54

Gurdev Singh (Lah.) 55

Ramautar (Pan) 3;

Aziz Begum (Lah.) _ 52

Dhaulan (Lah.) 4-;

Ghulam Jannat (Lah.) 33

Harnamun (Lahore) 39

Natesan (Mad.) L 99

4?

Mominuddi (Cal.)



'I'op;c Name Case No.
J\ge---(contd) Prern Narain (AIL) 8'3
Nirmal Ixban (Cal.) 49.'!
Shivrudxappa (Bom.) 72
Sabfr (AIL) . . . . . 73
Kartar Singh (Lah.) 46
Nawab (L;:h.) 45
Tin' (Rangoon) 42
Age of victim See "Boy Of"
Bhagwan Din (Oudh) 41
Age---(O]d age of convict) Sunder (AIL) 88'
Appellate Count . . Dalip Singh (S.C.) 3
(Interference in sentence).
Approve: , , Aziz Begum (Lah.) 52.
Ram Singh (Lah.) . 55
Arson . . . See "Fire"
Backward Class . Ramautar (Pat-) 8:
Baluchi custom See "Unchastity"
"Bodily injury" . . . Thannoo (Al].) 94
(Sect;on 300 thirdly I.P.C.)
Boy of 14-Murder of . Kanii (Ra§.) , 67
Boy of 6---Mu1-der of Bhagwandin (Oudh) 41'
Brutal murde1'----death sentence Eabu v. State A.I.R. 1965 S.C. 1467 (not
normal summarised)
Child See Infanticide
Circumstantial evidence . Sunder La] (S.C.) 8
Nisa Stree (8.0) 4
Kutuhal (SC) 5
Circumstantial ev;'dence-----no Govindareddy (Mys.) ga
ground for lesser senmce
Ulla (01-1552) . 6a-
Child Witness , . See----The State v. Dukha Bax' A.I.R. I963
Orissa 144 paragraph 29 and Ghasixzm
I.L.R. 1962 Cut. 505.
College student----Murder by Munirathnam (Ardhra) 76
Com gt s1udent--Su:'cide p2Ct . Dasrath (Pan) 9;



Topic

I 9

Name

Case No.

C ommon intention ,

Common object . . .

Constitution----Art 1340) -(a)
Article I34(i)(c) . .

Copus delicti
Counsel

Criminal Procedure Code, Sec-
tion 271

Criminal Prccedure Code, Sec-
U011 367t5)(old)

Criminal Procedure Code, Sec-
tion 367(5)--Amended

Criminal Procedure Code, Sec-
t,'0n 4ox

Cruel murder
Dacoity with murder

Dead body (discovery of)

Deaf and dumb---accused

Death sentence to be ordinarily See Cr'm-ﬁnal Procedure Code Sectjon 367
(5)

imposed

Muniyandi (Mad)
Rishi Deo (S.C.)

See Masaezi v. State A.I.R. I965 S.C.

202 paragrz ph 20

Tara Chard (S.C.)
Sunder Singn (S.C.)
Njsa Stree (S.C.)
See "Dead body"
See "Plea of guilty"
See "Plea of guilty"

Govindaswami (M2d.)
Vijayan (T.C.)
Pandurang (Bom.) ,

Moo] Chand (All.) , .
"and cases in footnote thereto)

Serajuddin (A1l.)
Dukari Chandra (Cal.)

Dalip Singh \S.C.)
(Observation ;

Gurdev Singh (Lah.)
Satyavir (AIL)

Amala Koteshwara Rao (Andhra)
See "Mercy" and "R(m"ss,'on"

Kashmira Singh (S.C.)
Mahabir Singh (Cal.)

Ram Nath (Lucknow) (Ovdh)
Ram Chandra (S.C.)
Bandhu (AIL) , _

Peethambaran (Ker.)

59

24
I1'

66
64
8o

55

6r
4o

84.
89-

I01

54'
35
15A'
32
93



.10

Topic Name C?" N°-
'D . . . . . Kal ' s.c. . . . . . 2
' clay I)aiv§:itI11g(uishe)d in Babu V. State A.I.R.

I965 S.C. 1467

Mahabir Singh (Cal.) . . . V . 54
Ram. Singh (Lahore) . . . . 55
Amz;_u CEJEJ . . . . . . 53
Gudder Singh (Pun) 63
Nawab Singh (S.C.) . . . . 7
Delay in execution . . Piare Dusadh (F.C.) . . . . 26
,Despei-ate resentment . . Dukari Clandra (Ca1.) . . . . 40
.Difference of opinion (sentence) Pandurang (S.C.) . . . . . I0
Distinguished in Babu v. State A.I.R.
1965 .C. 146.
Dukari Chandra (Cal.) . . . 40
Mool Chand . . . - 65
;Differenee of opinion . . See enhancement.
(enhancement).
,Difference of opinion (guilt) . Shivanna (Mysore) . . . . 77
;Discretion---Sentence a matter Dalip Singh (S.C') . . . » 3
of discretion.
.,Double murder . . . Harnamun (Lah.) . 38
Palaniswami (Mad.) . . . . 62
;Double murder--by boy of 16 . Govindaswami (Mad') . . . . 66
.Doubt as to guilt . . . Ram Nath- (Oudh) . . . . . 35
See also Nag Myauk Nyo, A.I.R. 51938
Rangoon 56-57 (Roberts C.J. and Spargo
Drunkenness . . . . See "Intoxication" . . . 25
D yin; declaration ----completed . Muniappan (S.C.) . . . . .
Enhancement (Re -consideraﬁon Bansi (All.) . . . . . . 79
not possible). v .
.Eal1an:ement (Refused on Amru (E.P.) . . . . . . 58
ground of delay).
Enhancement . . . Pandurang (Bom.) . . . . . 80
Gurdcv Singh (Lah.) . . . . 56
Bhagwandin (Oudh) . . . .' 4:

-Mewa (Lah.) . . . . . . 5!



11

Topic Name Case No.
Enhancement--not to be lightly Dalip Singh (S.C.) . . . . 3
ordered.
Enhancement--difTerence of opi- IN re Govindaswami . . . 66
nion among Judges.
Foot-note to Nisa Stree (S.C.) . 4
Enhancement-- boy of 16 mur- In re Govindaswami . . . . 66
derer.
Enhancement ordered See (i) Nga Ywa A.I.R. I935 Rangoon 49: 66
52.
(ii) Tirumaligadu. (I928) I.L.R. 52
Mad. 147, 151.
Enhancement (observation that Bansi (All.) . . . 79
re-consideration not possible)
Enhancement . Balbir Singh (Pun.) . . . 96
("No scope for")
'Enmity--Absence of Satyavir (All.) 89
Epileptic ﬁts . V See "Insanity"
Error in conviction See Kali (All.) . . . . . 3!
Evidence . . . . See "single witness"
"dying declaration"
"circumstantial"
"dead body" etc.
Extenuating circumstances . Gurdev Singh (Lah.) 56
(Examples listed).
Mool Chand (All.) 6;
Fire arms expert Kalu (S.C.) . . I8
Fire--(Setting ﬁre & murders) . Venkalu (S.C.) , :4
Frenzy . . . . See "Insanity"
'Gambling---(Firing on gamblers) Chat_an Das (E.P.) . . . . 59
;':ain--Murder for . Govindareddy (Mysore) . . go
See also Basanta A.I.R. 1959 Orissa 29,
33 (Death sentence for murder of boy
of four years).
Hireling . Nathu (All.) . . . . . 75
identity of victim . Puttawa (Mysore) . ' 9<
Illegitimate child Ghulam Jannat (Lah.) , 33

Inprisonment otherwise than
life.

See "mercy"



12

Topic Name Case No.
Impulse . See "Insanity".
Indian Penal Code . See "Indian Penal Code"
Individual fault or blow . . Wazir Singh (S.C.) 15
Rishi Deo (S.C.) . . . . . 9
Mewa (Lah.) 51
Namdeo (Bom.) . . . . . 74
Muniyandi (Madras) . . . . 69
Shankar (Bom.) 85
Arun Kumar loo
Raiagopalan (F.C.) 27
Individual fau1t--Dacoity Mahabir Singh (Cal.) . . 54
Infanticide Dhaulan (Lah.) . . , , , 47
See also cases in footnotes to Nisa Stree
(S.C.) . . . . . . 4
Inttirlitlilcide effect of child Talian 53
Insantity Kannan U. (Ken-.) (epileptic) , 98
Palaniswami ('VIad.) (frenzy) _ , _ 62
Kali Charan (Nag.) (impulse) , 57
Sankappa Shetty, A.I.R. 1941 Mad. 326, Not
i33gél:1xegr!l:tt)33I§ S3376 'I:lastea)t.1iali Sastri's noted.
Insanity (Delusion) Hazara Singh (Pun.) - 92
Insanity (Epileptic ﬁts) . Tola Ram (Lah.) 35
Insanity and multiple murders . See Multiple Murders.
Insanity (Subsequent) Piare Dusadh (F.C.) 26
Indian Penal Code, Section See "Ix_idiv'dual fault" and "Common in-
34. tent-.on".
Incllﬂagn Penal Code, Section See "Common object"
Inggan Penal Code, Section See "Insanity".
Ingisan Penal Code, Section Basdeo (S.C.) 12
Indian Penal Code, Section See "Waging Wax"-

I21.



13

1'op,',_- Name Case No.
I1i?a1 Penal Cole, Section ze the particular topics.

33:) and Exteptions.

Mahabir Singh (Cal). 54
Indian Penal Code, Section See "Dacoity with Murder"

396. Basdev (S.C.) . . . 12
Intoxication Kanji (Raj.) . . . 67
Lapes of time See "Delay"

Large nurnber--sentenced to Shaﬁ Khan (Pat.) 39
death.
Leniency to others Brii Mohan (S.C.) . I6
Lesser sentence than lifed. See "Mercy"
Lunacy . See "Insanity"
Mercy-reco,nme ndation for Peethambaran (Ken) (lesser than life) . 93
Aziz Begam (Lah.) (lesser than life) 52
Talian (Lah.) (lesser tnan life) 53
Dhaulan (Lah.) (lesser than life) 47
(Nawab (Lah.) 45
Kartar Singh (Lahore) (lesser than life) 46
Tola Ram (Lahore) (lesser than life) 36
Daulan (Lahore) (lesser than life) 34
Kali (All.) (Error) 31
Foot-notes to Nfsa Szree 'S.C) (lesser
than death or We imprisonment) . 4
Ghulam Jannat (Lahore) (lesser tnan life) 33
Kali Charan (Nag.) (lesser than life) 57
Charan Das (Andhra) 59
'Molestation of girl Natesan (Mad.) 99
.Mother---murder of Kannan (Ker.) 98
Motive---Absence of Kanji (Raj.) 67
Ivlotive----Laudable , Kalicharan (Nag) 5-7
Kalawati (S.C.) 2
Multiple murder (of 6 persons) Govinda Rcddy (Mys.) 9o

Shanker (B0rn.)



14

Topic Name Case N0.
Multiple murde: (of 4 persons)--- Namdeo (Bom.) . . .. . . 74
Multiple murder . . . Kali Charan . . . , . 57
Multiple mIrder--but noinsanity In re Raiagoﬁnla A.I.R. I952 Mad. 289 . ngfgigy
New material» discovered , Kali (Al1.) . . . . . . 31»
Only son- »Accused only son . Mominuddi (Ca1.',: . . . . 49
Orders of Superior Oﬂlcers _ See "Superior Oﬂlcers"
Penal Code . . . . See Indian Penal Code.
Penitence . . . . Mominuddi Sardar (Cal.) , , G 49
Personal enmity--absence of . Harnamun (Lahore) . . . . 38
Personal gain--absence of . Amru (E.P.) . , , , . _ 58
Plague case . . . . Benoyendro v. Emp. A.I.R. 1936 Cal. 73 Not
discussed,
Plea of guilty . . . Bhadu (All.) and cases noted thereon , 29
P-:-.i:~0ning . . . . Mohan (S.C.) , . . . . 20-
Post-mortem . . . . BaSu--Tanti (Pat.) . . . . . 86»
Report, not evidence . . Rangappa (Mad.) . . . . _ 50
Pregnancy . . . . See "Infanticide--"
Eﬁect of child birth and also Foot-notes to
Nisa Stree (S.C.) . . . 4'
Prev-meditation , _ , Basdev , , . , , _ 12.
N .Narayanan . . . I3.
viii? (s.c.) . . . ,4
Pre-meditation--absence of . Bhagwandin . . . . . 41
Private defence . . . Balbir Singh (Punjab) . . . . 96-
Provocation . . . . Ulla (Orissa) . . . . . . 60
Nanavati (S.C.) . . . . . 22
Banwari (S.C.) . . . . . 23
Provocation (topic of Adultery Jai Ram (Bombay) . . . . 0'7
discussed)
Provocation . . . . Palani Moopan Khan (Ca1.) . . . 770
I
Thothan (Madras) . . . . S2

Mumgian (Madras) . . . . 8 ,-



S S Topic Name Case Noz-
Provocation (contd.) . . Narayanan (S.C.) 13
Public servant---murder of Nirmal Jiban (Cal.) 49A"
Public servar1t--(Lambardar-- Mewa (Lahore) SI

murder of).
Public servant (constable) Shiﬁ Khan (Pat.) 39'
--Murder of.
Public servant--Murder of Gudder Singh (Punjab) . 53
Sub-Inspector.
Rape-at point of gun . . Mian Gul (Lahore) 44'
Recommendation for mercy . See "Mercy"
Reform---(of convict) . . Bhagwandin (Oudh) 4T
Reformatory School . . Ulla (Orissa) 50'
Munizathan (Mad.) 75
Remission . . . . See "Mercy"
Remissi0n--not equal to Puttawwa (Mys.) 95
acquittal.
Second murder by same person Muniyandi (Mad.) 69
Self-Control . . . . See "Provocation".
Sentence enhanced . . See "Enhancement".
Several persons sentenced . See "Large number".
Sexual intercourse--followed Ram Singh (Lah.) . 353
by murder.
Sharp Weapon . . . Haﬁzullah (All.) 841
Shocking murder . . . Kashmira (S.C.) 1
Single witness . . . Vadivelu (S.C.) 17'
Son acting under father's inﬂu- Mizaji (S.C.) 19'
ence.
Special leave limited to sentence Wazir Singh (S.C.) 15-'
Basdev (S.C.) I2
Sudden ﬁght . . . . Preman (Lah.) 37
Atma Singh (Punjab) 78
Pran Das (S.C.) 6
Same': pct . . . . Dasrath Paswan 91



I6

Topic

Name

Suicide--Attempted after mur-
der.

Sxprrior Oﬁ:er's Orders
Terrorist

Time

Trava xcore (Penal Code)
Travancore and Cochin .
Triple murder

Unzlustity-killing for (Baluchi
custom).

Unlawful assembly
Vengeance
Waging War .
Wicked murder

Wife--murder of

Witchcraft
--Belief in.
-as extenuating.

Woman, (sentenced to death)

Woman--murder by

Woman--:nurder of
Youth . . . .

Natesan (Mad.) . .

Charan D23 (East Punjab) . .
Nirmal Jiban (Cal.) . .

See Delay

Kochan Chellayyan

Viiayan (Travancore-Cochin)
Mahabir Singh (Cal.)

Kaivn (Sin:l)

Kartar Singh (S.C.) . .
Pandurang (Bom.) . . .

Hla Auug (Rangoon)

Basu Tanti (Patna) . . .

Dukari Chandra (Cal.)
Iai Ram (Bom.)
Hazara Singh (Punjab) . .

Ramautar Singh (Patna) . . . .

Nisa Stree (S.C.) .
and foot-notes thereto.

Talian (Lah.) . . . . .
Aziz Begum (Lah.)

Dhaulan (Lahore) .

Ioyaji (Bom.)

Daulan (Lahore)

Kutuhal (S.C.)
See age.

Case No,

99

59

49A

6'5
64
54

43

2 I
80
4.3
86
4o
97
92
8 (

53
52
47
3o

34



17
Case No. 1.
Kashanira Singh v. State of Madhya Pradesh
A.I.R. 1952 Supreme Court 159--
1952 S.C.R. 526
(Fazl Ali, B. K. Mukherjea and Bose JJ.)
(Judgment by Bose J)

The appellant was convicted of the murder of a small
boy of 5 years and sentenced to death. On the facts, the
Supreme Court allowed the appeal ﬁled with special leave,
and acquitted him of the charge of murder and kidnap-
ping. He was, however, convicted of an offence under
section 201 following Begu v. The King Emperor'. The
Court pointed out, that where the murder committed is
particularly a cruel and revolting one, it is necessary to
examine the evidence with more than ordinary care, lest
the shocking nature of the crime might prevent a dis-
passionate judicial scrutiny of the facts and law.

Case No. 2.

Kalawati v. State of Himachal Pradesh
1953, S.C.R. 546 A.I.R. 1953

S.C. 131, 135
(Patanjali Sastri, C. J. Mukerjea, Chandrasekhara Aiyer,
Bose and Ghulam Hasan JJ.)
(Judgment by Chandrasekhara Aiyar J.).

Sentence of death was, in this case, replaced by the
sentence of transportation of life, having, regard to the
time that had elapsed since the offence and to the fact
that the probable motive was one of prevention of cruelty
to a helpless women--to a wife who was ill-treated by
her husband. (In this case, the husband was murdered
by the accused. The husband used to ill--treat his Wife.
The accused murdered the husband for protecting her
from this cruelty).

I. Begu V. The King Emperor, A.I.R. 1925 PC. I30----52 I.A. 191.

NOTE :--This does not mean that in every case of delay the sentence
must be reduced to imprisonment for life. The death sen-
tence may be maintained notwithstanding, delay if the murder
is brutal. Babu v. State A.I.R. 1965 S.C. 1467.

3-122 Law. ''1



18

Case No. 3.
Dalip Singh V. State of Punjab
A.I.R. 1953 S.C. 364, 367, 368
1954 S.C.R. 145
(Mahajan, Bose, and Jagannadhadas JJ.)
(Judgment by Bose J .)

Death Sentence should ordinarily be imposed for
murder. [Section 367 (5), Criminal Procedure Code was
not referred to.] But, when the trial judge has imposed
the lesser punishment for reasons which are such that a
judicial mind could properly act on them, the appellate
Court should not interfere with the discretion.

In the instant case, the Sessions Judge convicted the
appellants under section 302, Indian' Penal Code and sen-
tenced them to transportation for life, as it was not possi-
ble to determine who inﬂicted the blows which were fatal
and who took a lesser part. The case was one in which
"no one has been convicted for his own act but is being
held vicariously responsible." The Punjab High Court
enhanced the sentence to death. The Supreme Court
held, that the Sessions Judge had a discretion which had
been judicially exercised. The discretion was his, and not
the High Court's.

Sentence reduced to transportation for lifel.

Case No. 4.

Nisa Stree V. State of Orissa
A.I.R. 1954 S.C. 279. (Not in S.C.R.)
(Mahajan, S. R. Das and Bhagwati JJ.)

(Judgment by S. R. Das J.)

The accused, a woman of 20 years, was convicted of
murder on circumstantial evidence. On the date of the
occurrence, about an hour before sunset, she was seen
proceeding with the deceased in the direction of the scene
of occurrence. She came home Without the deceased in
the evening, in hurried steps, with her cloth lifted up.
The cloth was found to be stained with human blood, and
two ornaments of the deceased seen on the person of the
deceased when she was going towards the scene of murder,
were discovered at her instance from the thatch of her
hut. She was convicted of murder (and also under sec-

I. for other cases stressing that sentence is a matter of discretion, see
Nar Smgh, A.I.R. x954, S.C. 457; 1955 S.C.R. 238 and Bed Raj
A.I.R. I955 S.C. 778. 781.



'tion 379

19

) and sentenced to death. The sentence was con-

ﬁrmed by the High Court, which, however, gave certiﬁcate
for appeal under article 134 (1) (c).

The

Supreme Court held, that the circumstantial evi-

dence in the case was only consistent with guilt of the

accused.

The

Conviction upheld.

murder was coldblooded and out of pure greed.
(Question of sentence not speciﬁcally

dealt Wlth)1.

I. See also--_--

(i)

(ii)

(ii)

(iii)

(iv) Karuppal In re.,

(V)

(vi)

lvii)

Mnai 7,'. Emp., A.I.R. I938 Nag. 318 (1938) 39 Cr.L.J. 405;
(Grille and Digby JJ.)----«Case of a woman murdering her husband
by Dhatura poisoning. The woman was on terms of intimacy
with one and committed murder to get rid of her husband.
Death sentence conﬁrmed.

Rasammal, In re. A.I.R. 1915 Mad. 82
aged 50 years, had murdered her 5 years old grandson, with a
heavy pointed ﬁle. She was sentenced to transportation. On
revision, Ayling J. wished to enhance the sentence. Seshgire
Aiyar J. disagreed, and considered the lesser sentence as proper
owing to her age, and lapse of time. The matter was referred to
Oldﬁeld J. who enhanced the sentence to death, holding that
sex and age had to be weighed against the other factors of the
case, which were, pre-meditated and brutal murder, comm"tted
owing to the accused's hatred of her daughter-in--law.

I (In this case, a woman

Emp. v. Misri (I909) I.L.R. 31 ALI. 592, 593, 598 (Death sen-
tence on woman for murder of a girl of I2 years for ornaments
conﬁrmed by Richards & Alston JJ.).

In re. Thithanchumma. A.I.R. 1941 Mad. 27 (Burn and Mocket
JJ.)----Sentence of death on woman of 20 years conﬁrmed. She
had murdered a girl of I2 years by strangling, and took, her silver
jewels worth Rs. 5/-. As the crime was deliberate and "brutal
the sentence was conﬁrmed. Court noted that she was in an
advanced stage of pregnancy at the time of murder, and had
(since the murder) give birth to a child. But this was a matter
for the Government to consider.

A.I.R. 1944 Mad. 5o, 51 (Burn and Moekett 1].)
-----A woman who had been ill-treated by her husband killed her
own two children---~gir1 of ﬁve and boy of two, by throwing them
into a well. She also jumped into the well, but managed to get
out. The Additional Sessions Judge sentenced her to death,
saying that he had no option out to award the extreme penalty.
The High Court reduced it to transportation for life, and agre-
ed that even that was excessive in the circumstances of the case.
Ma Shwe Yi (woman poisoning husband sentenced to death
I.L.R. I Rang. 751; A.I.R. I924 Rang. I79.

Er)np. v. _7eoly I.L.R. 39 All. 161 (Richards CJ & S.C. Banerji
J. .

Emp. v. Mt. Har Piari A.I.R. 1926 A 1. 737, 741 (woman cruelly
administering poison to husband sentenced to death).



20

Case No. 5.
Kutuhal v. State of Bihar

A.I.R. 1954, S.C. 720 (Not reported in S.C.R.)
(S. R. Das and Bhagwat JJ)
(Judgment by Bhagwat J .)

The appellant was convicted of the murder of an old
woman of 70 years. The woman had died as a result of
shock caused by injuries on her chest. The circumstances
were such that the only reasonable inference was that the
injuries were caused by the appellant. The appellant had
an opportunity for the same and also strong motive to do
away with the old woman. He was in great hurry to
cremate the corpse and to dispose of the dead body.

He was convicted under section 302, Indian Penal Code
and sentenced to death by the Sessions Judge. The High
Court dismissed his appeal and conﬁrmed the sentence.
Having regard to these circumstances and to the fact that
the appellant did not care to inform the relations of the
dead woman, the Supreme Court upheld the conviction.
(Sentence was also upheld).

'Case No. 6.
Prcm Das V. State

A.I.R. 1954 S.C. 36 (Not in S.C.R.)

(Kania C. J., Fazl Ali, Patanjali Sastri, Mahajan, B. K.
Mukherjee and S. R. Das JJ.)

(Judgment by Fazl Ali J.)

In this case, which was heard by special leave on
appeal from the decision of the High Court at Nagpur,
the Supreme Court altered a conviction under section 302,
Indian Panel Code into one under section 304. This was a
case of sudden quarrel between the accused and the de-
ceased, which ensued in free ﬁght between the two parties
in which each party assaulted the other with sticks. The
accused dealt only one blow on the deceased, which re-
sulted in his death. The Sessions judge acquitted the
accused, while the High Court on appeal convicted him
under section 302, Indian Penal Code and sentenced him
to transportation for life.

On appeal, the Supreme Court held that this was a
case falling under the Fourth Exception to section 300 and
therefore. came within the Second Part of section 304. The
accused had dealt only one blow, and the High Court's
observation that it could not be said that he had not taken
under advantage or acted in a cruel manner was not sup-
ported by the evidence.

(Sentence altered to rigorous imprisonment for ﬁve
years).



21

Case No. 7.
Nawab Singh v. State of U.P.

AIR. 1954, S.C. 278 (Not in S.C.R.)
(Mahajan, B. K. Mukerjee and Jagannadhadas JJ.)
(Judgment by Mukherjee J.)

This was a case of cruel and premeditated murder for
which the appellant had been sentenced to death under
section 302. The Supreme Court dismissed the appeal
filed with special leave. As regards the argument of the
appellant that a good deal of time had elapsed since the
death sentence was imposed and that it should be com-
muted to one for transportation for life, the Supreme
Court observed that it was true that in proper cases an in-
ordinate delay in the execution of the death sentence may
be regarded as a ground for commuting it, but "We desire
to point out that this is no rule of law and is a matter
primarily for consideration of the local Government. If
the Court has to exercise a discretion in such matters,
the other facts of each case would have to be taken into
consideration."

(In the case before the court, there was no extenuating
circumstances and the murder was regarded as a cruel
and deliberate one, and therefore the court did not order
commutation).

Case No. 8.
Sunder Lal v. State of Madhya Pradesh
A.l.R. 1954 S. C. 28 (Not in S.C.R.)

(Mahajan and Bhagawati JJ.)
(Judgment by latter).

There was circumstantial evidence to the effect that
the accused and the deceased were seen together at a parti-
cular time and that immediately after the murder, the
accused went to one B with gold, etc., and then next morn-
ing to a goldsmith with gold and silver. The silver was
identiﬁed as habitually worn by the deceased. The
Sessions Judge acquitted him of the oﬁence under sec-
tion 302, Indian Penal Code but convicted him under sec-
tions 394 and 323. Accused appealed. Government also
appealed against the acquittal in respect of section 302,
Indian Penal Code. The High Court conﬁrmed the convic-
tion under section 394 and also convicted him under sec-

tion 302 (in place of section 323) and sentenced him to
death.

On appeal to the Supreme Court, the conviction was

upheld. Appeal dismissed. (No discussion as to
sentence).

Case No. 9.
Rishi Deo Pande V, State of U.P.
A.I.R. 1955 S. C. 331, 333, paragraph 4 (Not in S.C.R.)
(S. R. Das, Bhagwati and Imam JJ.)



22

(Judgment by Das J.)

The appellant, though he did not inﬂict any blow, yet
shared the common intention to kill the deceased and was
present on the spot with his lathi. He was convicted under
section 302, Indian Penal Code read with section 34 and
sentenced to death by the Sessions Judge. On appeal, the
High Court conﬁrmed the conviction and sentenced.

On appeal, the Supreme Court upheld the conviction
and sentence. Counsel for appellant pleaded for mercy,
as he himself did not inﬂict any blow. The Supreme Court
rejected this plea, as the accused had shared the common
intention and was present on the spot with his lathi, While
his brother actually dealt the blow on the sleeping man.
"If there is any extenuating circumstances outside the
record, the appeal must be to authorities other than the
Courts of Law.".

[Section 401, Criminal Procedure Code not referred '60.]

Case No. 10.
Pandurang v. State of Hyderabad
A.I.R. 1955 S.C. 216, 223, paragraph 37~ (1955) 1 S.C.R. 1083.
(B. K. Mukherjee, S. R. Das and Bose J.J.)
(Judgment by Bose J.)

When appellate Judges who agree on the question of
guilt differ on that of sentence, it is usual not to impose
the death penalty, unless there are compelling reasons. So
observing, the Supreme Court in this case reduced the
sentences of death of two persons (to transportation for
life) in View of the fact that in the High Court, there was
difference of opinion regarding them, not only as to guilt
but also as to sentence.

(Also discusses section 34, Indian Penal Co-de).

NOTE :----Where there is a diﬂerence of opinion as to guilt, certain other small
points also arise:---«

(a) Is the third Judge bound to agree with the acquitting opinicn,
in me absence of strong and compelling reasons? There is
some controversy In re Nzmiah, A.I.R. I959 A.P. 313, 318,
Paragraph 15, Uma Maheshwaran I. answered this in the
afﬂrmative disagreeing with In re Sitaramayya, A.I.R. 1953
Mad. 61, 63 (Paragraph 5), 66 (paragraph 18). For a contrary
view, see Mistri 1). King I.L.R. (1949) I Cal. 43. It would
seem that the third Judge is not bound by any such limitation.
Cf. Balm v. State A.I.R. I965 S.C. 146, paragraph 7.

(b) Cannot the third Judge pass death sentence as a matter of
law? See the doubt expressed by Mack J. in In re Simm-
mayya, A.I.R. 1953 Mad. 51,64, paragraph 8 in view of the
wording of Section 377, Criminal Procedure Code which re-
quires that the conﬁrmation should be by at least two Judges.

Nora :---From a recent Supreme Court case, it would seem
that the proposition enunciated in Pandurang's case
(supra) cannot be raised to the pedestal of a rule for
that would leave the sentence to the determination
of one judge to the exclusion of the other" Balm v.
State A.I.R. T965 S.C. I467.



23

Case No. 11.
Sunder Singh v. State of U.P.
A.I.R. 1956 S.C. 411 (Not in S.C.R..)
(Bhagwati, Venkatarama Ayyar, Sinha JJ.)
(Judgment by Sinha J.)

The appellant was in intimacy with the wife of the de-
ceased and this was the motive for the crime. On the night of
the occurrence, the appellant and the deceased went out
together, and only the appellant returned. Blood stained
marks were seen on appellant's shoes during the investi-
gation, and he was arrested. Thereafter blood-stained
clothes were also discovered with him. A sword was re-
covered at the scene of offence at his instance, and there
was other evidence also. He was convicted and sentenced
to death. The conviction was upheld by the Allahabad
High Court, which conﬁrmed the sentence also.

While discussing the appeal filed on certiﬁcate granted
by the High Court under article 134(1) (c), the Supreme
Court very strongly criticised the High Court for granting
the certiﬁcate. The High Court's order was described as
erroneous. There was no substantial question of law or
principle involved and the High Court would not be
justiﬁed in granting a certiﬁcate. Attention of the High
gourt was drawn to Nar Singh v. State1 and Baladin V.

tateg.

Case No. 12.
Basdev v. State of Pepsu

A.I.R. 1956 S.C. 488----(1956) S.C.R. 363.

(Bhagwati and Chandrasekhara Aiyar, JJ.)
(Judgment by Chandrasekhara Aiyar J.)

The appellant, a retired military Jamadar was charged
with the murder of a young boy aged about 16 years. They
along with others went to attend a marriage in another
village and went to the house of the bride to take the
midday meal. Some persons has settled down in their
seats and some had not. The appellant who was very
drunk and intoxicated, asked, the boy to step aside a little
so that he may occupy a convenient seat, but the boy did
not move and the appellant whipped out a pistol and shot
the boy in the abdomen. The boy died. It was found
that though the appellant was under the influence of drink,
he was not so much under the inﬂuence that his mind was
so obscured that there was incapacity in him to form the
required intention.

His drunkenness and absence of pre-meditation were
taken by the Sessions into account regarding the sentence.

1. A.I.R. 1954 S.C. 457----1955 S.C.R. 238.
2. A.I.R. 1956 S.C. I8:---(Not in S.C.R.).



24
He was therefore convicted of murder under section 302,
but awarded the lesser penalty.

An appeal to the PEPSU High Court was unsuccess-
ful. The Supreme Court granted special leave, limited to
the question, whether the offence committed fell under
section 304 of the Penal Code, having regard to the provi-
sions of section 86 of the Penal Code.

The Supreme Court held, that while it was true that
drunkenness which renders the accused incapable of enter-
taining requisite intent should be taken into consideration
along with other facts proved inorder to determine whether
or not he had this intent, yet in this case the drunkenness
had not proceeded to that degree. The accused had failed
to prove such incapacity as would have been available to
him as a defence. The oifence was not reduced from
murder to culpable homicide and "the conviction and
sentence are right.".

The case contains an excellent discussion of the effect
of drunkenness and approves of the proposition laid down
by the House of Lords in D.P.P. V. Board1 and summarised
in Russel on Crime, 10th Edition, page 63 on the subject.

Case No. 13.
Narayanan v. State of Travancore-Cochin

A.I.R. 1956 S. C. 99 (Not in S.C.R. Bose, Jagannadhadas
and Sinha JJ.)
(Judgment by Bose J.)

Appellant was convicted under section 302 for murder-
ing one 'A' and sentenced to death. There was longstand-
ing litigation in which the appellant and the deceased were
on opposition sides. There was a ﬁght between the son-in-
law of the deceased and the appellant. The deceased, not par-
ticipating in the ﬁght, merely asked the son-in-law to stop
ﬁghting, and said that he would settle their dispute.
Thereupon the appellant stabbed the deceased with a pen-
knife which he drew out from his Waist, and hit him on
the chest causing injury which eventually killed the
deceased. The injury was sufficient in the ordinary course
of nature to cause death. Two special facts to be noted
are, that the ﬁght was started by a slap by the son-in-law
on the face of appellant, resulting in a minor scufﬂe
between the two: and that the pen-knife was drawn out
by the appellant from his waist. He was convicted under
section 302 and sentenced to death.

The Supreme Court upheld the conviction and held
that exception 4 to section 300 did not apply, since it was
impossible to say that there was no undue advantage
taken when the accused stabbed the unarmed person who
had no threatening gesture and merely wanted to stop

ﬁghting.

1. I920 A.C. 479.



25

On the question of sentence the Supreme Court made
the following observations while reducing it to transpor-
tation of life:------

"VVe feel the lesser sentence is called for, because the
slap on the face evidently made the appellantwho appears
to be a hot--blooded man lose control of himself. That
would not afford justification for killing an innocent by-
stander who intervened with a mild admonition to the
appellant's adversary to stop ﬁghting. But We feel that
on the question of sentence this is not the type of case in
which the death sentence is called for. There was no pre-
imeditation and the knife was not ready in the hand but
was drawn from the waist after the appellant had been
slapped and the qurrel between the (son-in-law) and
him had started."

Case No. 14.
R. Venkalu v. State of Hyderabad

A.I.R. 1956 S.C. 171
(Bose, Jaganadhandas & Sinha JJ.)
(Judgment by Sinha J.)

The accused set ﬁre to the cottage in which the de-
ceased was sleeping. They also took care to lock the door
from outside, so that servants sleeping outside could not
give help, and to prevent villagers from bringing help to
the person who was being burnt alive.

(There was a longstanding dispute about land). They
were convicted under section 302, Indian Penal Code and
sentenced to death. The High Court conﬁrmed the sen-
tence. On appeal (by special leave) to the Supreme
Court, the Supreme Court conﬁrmed the conviction, and
observed' as follows:------

"The circumstances disclosed in the evidence
point to the conclusion that the oﬁence was committed
after a pre--concerted plan to set ﬁre to the cottage
after the man had as usual occupied the room and
gone to sleep. There is no doubt . . . . ..the charge of
murder has been brought home . . . . . . . . ..and that in
the circumstances there is no question but that they
deserve the extreme penalty of the law".

1. Paragraph IO in A.I.R.



26

Case No. 15
Wazir Singh V. State of Punjab

AIR. 1956 S.C. 754. (Not in S.C.R.)
(Bhagwati & Ayyar J.)
(Judgment by Bhagwati J .)

X and Y Were charged under section 302 and 34 Indian
Penal Code with the murder of S. Both were armed with
riﬂes and had the common intention of killing B, but the
shot ﬁred by them at B resulted in the death of S. Some of
the injuries received by S were sufficient in the ordinary
course of nature to cause death, but it was not established
which of the two accused was responsible for those fatal
injuries. The Sessions Judge convicted both and passed
the sentence of death. The High Court in the conﬁrma-
tion proceedings conﬁrmed the sentence of death on X
but reduced the sentence on Y to transportation for life.

X appealed by special leave to the Supreme Court, the
appeal being limited to the question of sentence only. Con-
tention of X was, that the common intention to kill B
could not, by section 301, be transferred to the murder by
B of S, because there was at no time any common inten-
tion to murder S. Held, on the evidence on record there
was nothing which could necessarily lead to the conclu-
sion that it was the appellant X who was responsible for
inflicting the fatal injuries on the deceased. If it was
doubtful as to who out of the two responsible, there was
nothing to choose between X and Y. If Y was awarded
the lesser penalty, there was equally good reason in
favour of X also. Further, the act of the Appellant X
would certainly fall within section 326 involving trans-
portation for life. Under these circumstances, there was
no justiﬁcation for conﬁrming the death sentence award-
ed to X. The High Court should not have distinguished
the case of X. Conviction under section 302 read with 34,
conﬁrmed, but sentence reduced to transportation for life.

Case No. 15A,
Ram Chandra v. State of U.P.

A.I.R. 1957 S. C. 381, 387, paragraph 6.
(Jagannadhadas, Imam and Govinda Menon JJ.)
(Judgment by Jagannadhadas J.)

In this case, there Was no tangible evidence (direct or
circumstantial) of the murder. The Supreme Court observ-
ed, "It IS true that in law a conviction for an offence does
not necessarily depend upon the corpus delicti being
found." But, on the evidence, the Supreme Court gave
the beneﬁt of doubt to the appellants as regards the



27

oﬁence of murder, and set aside the conviction for murder
and sentence of death confirmed by the High Court of

Allahabad.

The case was one of conspiracy to extort Rs. 10,000
from one C by kidnapping and murdering his son aged
about 14 years. On the facts, the Supreme Court regarded
it as proved that the appellants had kidnapped the boy.
Findings of the lower courts on offences under section 364
(kidnapping) and section 386 (extortion), Indian Penal
Code were maintained and sentences on those counts con-
firmed.

Case No. 16.
Brij Bhukhan v. State of U.P.
A.I.R. 1957 S.C. 474 (Not in S.C.R.)

(Jagannadhadas, B. P. Sinha and Imam JJ.)
(Judgment by Imam J.)

The High Court, while upholding the conviction of the
appellants under section 302 read with section 149, re-
duced the sentence of death on some of the accused to
transportation for life but did not reduce the sentence of
death passed on appellant P. Held, merely because
leniency was shown to some appellants was no ground
for reducing the sentence on P shown to be responsible
for the killing.

Case No. 17.
Vadivelue Thevar v. State of Madras.
AIR. 1957 S.C. 614ﬁ 619, (Note in S.C.R.)
J agannadhadas, Sinha and Gajendragadkar, JJ.

(Judgment by Sinha J ) This was a case of cold-blooded murder, for which the accused had been sentenced to death by the sessions Court, East Tanjore, under section 302, Indian Penal Code and the sentence had been conﬁrmed by the High Court of Madras. The accused appealed to the Supreme Court, by special leave.

K was the owner of a tea shop and at about 11-30 p.m. while he was busy preparing tea for a customer, the two appellants rushed into the premises. They attacked K and dragged him out of his shop to the road, and the first appellant gave him several blows in the front part of the chest with an "aruval" (cutting instrument about 2 feet long including the handle). K fell down on his back and cried out for help. His wife tried to rescue him and put his head into her lap. Soon afterwards realising that K had died, both the appellants returned, K's Wife placed his head on the ground and went and stood on the steps of 28 the tea stall. The first, appellant made the body of K lie with his face downwards and gave a nl_1II_1be.1' Of Cuts In the head, the neck and the back. These 1I1]uI'l€S were such as to cause instantaneous death.

The Supreme Court, while dismwssmg the appeal, after positions of importance. First, it was argued that the pro- positions of importance. First, it was argued that the pro- secution case was based entirely on the evidence of one witness----the wife of the deceased, (the 'other witnesses being not reliable) and that conviction in a capital case could not be based on a single witness. The court rejected this argument as totally untenable. It drew attention to section 134 of the Evidence Act, under which no particular number of witnesses was required for proving any fact, As far back as 1872, it said, the legislature, having con- sidered the pros and cons, had decided that it should not be necessary for the proof or disproof of a fact to call a particular number of witnesses.

If the Legislature were to insist upon plurality of wit- nesses, cases where the testimony of a single witness only could be available in proof of the crime would go un- punished. If the testimony of a single witness is found to be entirely reliable, there is no legal impediment to the conviction on such proof. Moreover, if courts were, irres- pective of the quality of the evidence of a single witness, to insist on plurality of witnesses, they would be indirectly encouraging subordination of witnesses in situations where only one witness is available. There might be exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver. But where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisﬁed that the testimony of a single witness is entirely reliable. The court had, in this case, no reason for not accepting the testimony of the wife "which is the only reliable evidence in support of the prosecutionl.

On this point, see also---

(l) Mohamed Sugal v. The King. AIR. 1946 P.C. 3.

(Appeal from Somaliland, to which the Indian Evidence Act and the Indian Oaths Act had been made applicable). In this case, the conviction and sentence of death for murder of a half-brother were upheld. Unsworn evidence of a girl of 10 or 11 years was held to be admissible. It was also pointed out that under the Indian Evidence Act, corroboration is not required by statute and goes only to the weight. (In the instant case, there was corroborative evidence).

I. See paragraph 12 of the A.I.R. 29 (2) Vemireddy v. State of Hyderabad, 1956 SCR. 247, 252--A.l.R. 1956 S.C. 3'79, 381, paragraph 7 and page 380, paragraph 6.

(Observations to the effect that in the facts of the case it would be unsafe to hang four persons on the sole testi- mony of a dhobi boy, without corroboration). The dhobi boy was not an abettor, he merely witnessed the crime but did not inform anybody on account of the reign of terror that prevailed at that time.

Case No. 18.

Kalua V. State of U.P. A.I.R. 1958 S.C. 180: (1958) S.C.R. 187 (Jaganadhadas, Imam and Govinda Menon JJ.) (Judgment by Imam J.) VVhen D was sleeping on a cot, the report of a shot ﬁred woke up the people. They saw the appellant running towards the east, accompanied by others. D died almost instantaneously as the result of the injuries on his chest and stomach, from where pellets were recovered at the time of the post-mortem examination. Near D's cot, a cartridge was found. The accused also produced a pistol. The ﬁre--arm expert deposed that he (the expert) had ﬁred four test cartridges from the pistol produced by the accused, and found that the individual characteristics of the chamber impressed upon the test cartridges and markings, were also present on the paper tube of the cartridge found near the cot of the deceased.

There was evidence of motive also. (Quarrels as to who should be the guardian of one R. and regarding cons- truction of a wall by the appellant over R's land had been going on).

The appellant was sentenced to death for murder of the deceased. Appeal to the High Court was dismissed-- Appellant obtained special leave to appeal to the Supreme Court.

The conviction was upheld by the Supreme Court, and appeal dismissed. (There is no discussion as to sentence). Case No. 19.

Mtza Ji v. State of U..P., A.I.R. 1959 Supreme Court 57221959 Supreme Court Joiumnal 554_--_(1959) Supp.

1S.C.R. 952 (Imam, Das & Kapur JJ'. Judgment bye Kapur J.) The appellants, 5 in number, went with the common' object of getting forcible possession of land which was int 30 possession of the deceased. Appellant Mizaji was armed with a pistol, his father Was armed with a spear and others were armed with lathis. When the complainant's party were told that the appellants were cutting the crop, the complainants protested to the appellant M1za]i's father, whereupon the complainants were threatened by all the members of the accused party that they would be ﬁnished if they did not go. Then the father of appellant Mizaji asked Mizaji to ﬁre and Mizaji ﬁred the pistol, as a result of which 'R' was injured, fell down and died half an hour later. All were convicted under section 302 read with section 149 and sentenced to imprisonment for life, but Mizaji was sentenced to death. Appealed to the Sup- reme Court. The Supreme Court (discussing in detail cases on sections 34 and 149) upheld the conviction. As regards the sentence, the argument of Mizaji was that he did not want to ﬁre the pistol and was hesitating to do so until he was asked by his father, and that the penalty of death should not have been imposed on him. This was repelled by the Supreme Court as Mizaji fully shared the common object. He also carried the pistol from his house and must have been taken to have carried it for using it and he did use it. "Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the Court would take into consideration".

Case No. 20.

Mohan V. State of U.P. AJR. 1960 Supreme Court 659 (S. K. Das, Sarkar and Hidayatullah) (Judgment by Sarkar J.) (Not in S.C.R.) Evidence in the case showed that the accused gave the deceased three "peras" and within half an hour the de- ceased became ill and within two hours he died. It was also proved that the food which the deceased had taken did not contain poison and that the deceased did not take any other food apart from the "peras". Chemical examina- tion showed that he had died of arsenic poisoning. (As regards motive, suggestion was that accused had illicit intimacy with the wife of deceased). He was convicted under 302 and sentenced to death.

"The High Court conﬁrmed the conviction. He appealedto ' Supreme Court with special leave. Supreme Court dismissed the appeal. It pointed out that on these facts, the lower courts had found that arsenic was con- tained in the "peras". The Supreme Court saw no ground for taking exception to this ﬁnding, and the ﬁnding in- evitably led to the conclusion that the appellant was in possession of arsenic before he gave the peras.

~A - -~11!' 31 Case No. 21.

K. Subba Rao, Raghubar Dayal and J. R. Mudholkar Court 1787----(1962) 2 S.C.R. 395. K. Subba Rao, Raghubar Dayal and J . R. Mudholkar JJ.) (Judgment by Reghubar Dayal J.) Appellant along with a number of other persons, as- saulted the deceased and his companions on account of a dispute about possession of land. The deceased, etc., also struck the appellant's party. The deceased received injuried and died. Thirteen persons were tried but 10 were acquitted (as the evidence did not prove the case beyond doubt) and 3 were convicted. One contention raised by the appellant was that since 10 persons out of 13 had been acquitted, the remaining 3 persons could not constitute an unlawful assembly and the conviction under section 302 and 307 Indian Penal Code read with section 149 was illegal. This contention was repelled by the Supreme Court, which laid down that if the actual 1'lUl""il.')€3I' of persons in the appellant's party was more 'uh -1 5, the said party would constitute an unlawful as- sembly, even though only 3 persons had been convicted. Acquittal of the remaining persons would only mean that they were not in the incident. (Question of the sentence not discussed).

Case No. 22.

K. M. Nanavati v. State of Maharashtra.

AIR. 1962 Supreme Court, 605 (Not in S.C.R.) (S. K. Das, K. Subba Rao, and Reghubra Dayal JJ.) (Judgment by K. Subba Rao J.) A number of points were involved in this case. But for the present purpose, the case is noted for its discussion of the law relating to grave and sudden provocation consti- tuted by confession of adultery by a wife to her husband. The court pointed out, that words and gestures may also under certain circumstances cause grave and sudden pro- vocation in India. On the facts of the case, it was held, that though the confession by the wife of the accused of illicit intimacy with the deceased had caused momentary loss of self-control, yet after this the accused drove his wife and children to a cinema, left them there, went to his ship and took revolver and loaded it, did some oﬁicial bus'ness and drove his car to the oﬂice of the deceased and then to his ﬂat and then went to the bed room of the deceased and shot him. Interval between the time of his leaving his house and the time for murder was 3 hours-- sufﬁcient for regaining self-control. Hence the case did not fall within exception 1 to section 300 and the accused was rightly convicted of murder. (The High Court had, after hearing the reference made by the Sessions Judge 32 under section 307, Criminal Procedure. Code convicged him of murder, and sentenced him to imprisonment ﬂtlar life. Question of sentence was not discussed before 9 Supreme Court).

Case No. 23.

Banwari v. State of UP.

A.I.R. 1962 S.C. 1198 (Not in S.C.R.) Raghubar Dayal Kapur and Sarkar JJ.) (Judgment by Raghubar Dayal J.) A number of points involving interpretation of sections 234 and 239, Criminal Procedure Code and section 271 and amended section 537 Criminal Procedure Code and as to joint trials for offence under section 302 and section 307, Indian Penal Code were decided. But for the present purpose, the point of importance is one of sentence on B. B armed with a gun and R armed with an axe passed the ﬁeld of L. L asked B Where he was going. He replied that he was going for shooting birds. L turned back. B ﬁred two shots at L who fell down and died. B and R then proceeded southwards and after going about seven fur- longs met Bhagwan who questioned where he was going. B said that he was going to shoot crocodiles. Bhagwan said that there were no crocodiles and asked B to go back. When Bhagwan turned South, B ﬁred a shot at him. Bhag- wan sat down and B again ﬁred at him and again ﬁred two more shots. Bhagwan died.

B was found guilty under section 302 Indian Penal Code for murders of L and of Bhagwan and sentenced to death for both the murders. He was also found guilty under section 307 and convicted and sentenced to 8 years' rigorous imprisonment. (This was in respect of an attempt to murder later, after the villagers had pursued the appellant). R was found guilty under section 302 read with section 34 and sentenced to life imprisonment for the» murder of L. and of Bhagwan. He was also found guilty under section 307 read with section 34 and sentenced to 5 years rigorous imprisonment.

(There were points regarding irregularities, etc., not relevant for the present purpose). It was urged on be- half of B, that the sentence of death was too severe, as the shots at L were the result of the provocation consti- tuted bv certain conversation with B and there was no motive for shooting at L. This argument was repelled, ﬁrst, because the courts below had not believed B's ver- sion of the conversation and secondly, because the con- versation even if believed was not such as to provoke B to ﬁring at L twice. Further, there was no justiﬁcation for' ﬁring at Bhagwan without provocation. Hence sentence» of death was not reduced by the Supreme Court.

As regards R, however, it was held that the evidence did not prove the offence against him and that his running away from the scene was merely the result of his antici- pating popular reaction. He was acquitted.

Case No. 24

Tara Chand V. State of Maharashtra. A.I.R. 1962, S.C. 130---

SCJ-17..(1962) 2 S.C.R. 775. (Qapur, Subba Rao, Hidayatullah, Shah and Raghubar Dayal JJ.) Majority judgment of Kapur, Subba Rao and Shah JJ held that as both the trial court and the High Court had found that the deceased, wife of the accused, had died as a result of burns caused by ﬁre set to her clothes by the accused who had sprinkled kerosene oil on her and this ﬁnding was supported by her dying declaration against which no cogent reasons were given, the conviction based on such evidence was sustainable.

The Sessions Judge had convicted the accused only of an offence under section 304, Part II and sentenced him to three years' rigorous imprisonment and a ﬁne of Rs. 100/-. On appeal by the State the accused was sentenced by the High Court to death. The accused applied for certiﬁcate to appeal to the Supreme Court under article 134(1) (a), but the certiﬁcate was refused and the Supreme Court gave special leave under article 136. Ultimately, however, in this case the majority of the court held that the appellant was entitled to a certiﬁcate under article 134(1) (a), because since the appellant had in the trial court been acquitted of the offence under section 302 and convicted under section 304, Part I, the High Court's order reversing the acquittal and substituting an acquittal under section 304 was one of reversing an order of acquittal. Citting Kishan Stngh v. Emperor, A.I.R. 1928, P.C.--254--55 Indian Appeals, 390, the court held that acquittal does not mean that the trial must have ended in the complete acquittal, and must include a case where the accused is acquitted of murder but convicted of a lesser offence. 1 According to the majority judgment, the appeal failed and was dismissed. Question of sentence was not as such in issue.

The minority.--Raghubar Dayal and Hidayatullah J J .-- was of the opinion that it was not satisfactorily proved that appeallant committed the murder, and therefore allow- ed the appeal.

4--l22 Law.

34 Case No. 25

Muniappan v. State of Madras. 4.1.3. 1962, S.C. 1252- (1962) 3 S.C.R. 869. Kapur and Hidayatullah -U-) (Judgment by Hidayatullah J.) After making a dying declaration which was complete in itself, the declarant suddenly collapsed so that his thumb impression could not be aﬁixed in his life time and was taken by the Sub--Inspector after his death on the statement as recorded. The court observed that though the Sub-

Inspiector should have left the document as it Was, yet he had no improper motive in taking the thumb impression after death. The dying declaration was a complete state- ment and could be relied upon. In fact it needed no cor- roboration--Khushal Rao v. State of Bombay, 1958, S.C.R. 552--A.I.R. 1958 S.C. 22. There was in this case, however, other incriminating evidence also. Conviction for murder was upheld. (Question of sentence was not discussed as such).

Case' No. 26.

Piure Dusadh v. Emperor. A.I.R. 1944, F.C. 1, 14,----I.L.R. 23, Patna 159--I.L.R. 1944 Nagpur 300----, 1944-6 F.C.R. 61.

(Spens C. J ., Varadachariar and Zafrulla Khan JJ.) (Judgment by the Chief Justice.) These appeals from judgments of different High Courts were heard together as raising common question of law regarding the special Criminal Court Ordinance. For our purpose, the case is of interest only for the observations regarding death sentence. lln one of the appeals before the court, the death sentence had been imposed several months ago and the appellants had been lying ever since under threat of execution, delay having been caused largely by the time taken in proceedings regarding constitutionality of the ordinance creating the courts, etc. The Court observed, that it had power to substitute lesser sentence where there had been in ordinate delay (in cases which came before it) even though the sentence when originally imposed was right. But this was a jurisdiction which any court should be slow to exercise, being a jurisdiction closely entrenching on the powers and duties of the execu- tive. Accordingly, in cases Nos. 40, 41 and 42, the court refused to reduce the sentences from death the transporta- tion, in view of the other circumstances of those cases. (But, the courts said, it had no doubt that the executive would give full consideration to the period that elapsed and the mental suffering undergone by the convict.).

In case No. 47, the appellant was a young man of 25, twice widowed, who had killed his aunt (father's wife) 35 and who had, after being senten reason while awaiting the execution and was now detained as a lunatic. The court reduced his sentence to transpor- tation for life on the ground that the appellant probably suffered from an unbalanced mind.

Case Nos. 27 and 28.

Rajagopalan V. Emperor, A.l.R. 194, FC. 35, 36, 38 1944, F.C.R. 169 (Spens C.J., Varadachariar and Zafrulla Khan JJ.) This case is of importance for the proposition laid down (by Zafrulla Khan J., Spens C. J. Concurring) that in a case of conviction under section 302 read with section 149, lndian Penal Code the sentence must in all cases be transportation for the life could not be accepted. The question of sentence is to be decided on the facts of each case. (On the facts of the case, it was held that since there had been a ﬁnding that the appellants were among the seven or eight persons, who inﬂicted large number of injuries, the sentence of death was appropriate).

Varrdachariar J. had, on the facts some difficulty in sustaining the sentence of death on accused No. 1, as he had a doubt whether accused No. 1, inﬂicted any wound. But, since the question was bound up with inferences of facts with which "it was not the ordinary practice" of the Federal Court to interfere, and since his brother judges thought that death sentence was justified, he left the matter there.

Case No. 29

Bhadu. (1896), I.L.R. 19 All. 119.

It was held that it was not advisable to convict the accused solely on the plea of guilty by the accused in a capital case, where there is any doubt as to whether the accused fully understood the meaning and effect of the plea.

Note:~--For other cases on this point, see the under- mentioned decisions of Bombay' and Madras? The Bombay case reviews the case law also, and holds that a plea of guilty can be accepted only when there are proper safeguards, which must include representation by counsel.

1. Abdul KaderA11arakhia,(r946), 49, BOT1'1l')3Y Law Reporter, 25--

§'\fI).R. 1947 Born. 345 (Special Bench), (Stone C.]., Sen and Rajadhyaksna

2. Aiyawi. (1885) 1.1.1! 9 Madras 61.

ced to death. Lost his 36 The Bombay Special Bench of Abdul Kedar Allm-akhia° is interesting. The appellant had been convicted by Lokur J. and a special jury under section 302, Renal Code for the murder of his own daughter and only child--a girl of about 14 years--a.nd found by unanimous verdict to be guilty and sentenced by the Judge to transportation for life.

On appeal under section 411A, Criminal Procedure Code the conviction and sentence were set aside, and the case sent to the next Sessions to be dealt with according to law. The reasons for setting aside the conviction were these. The accused had asked the committing Magistrate for legal aid. But, at the opening of the Sessions, he was- arraigned to plead without counsel. So arraigned and asked to plead, he said that he was guilty. In the charge' to the jury, the judge referred to the plea of guilty, though the judge made it clear that he (the Judge) did not accept the plea and that the plea was not before the Jury. These» two "irregularities--taking the plea of guilty without counsel, an-d referring to it in the charge to jury--were- held to vitiate the trial. (Stone C.J.2 also observed that without proper safeguards, the plea of guilty should not be accepted. These safeguards he said, must include the accused's representation by counsel who must be in a position to answer the questions of the Court with regard to whether the accused knows what he is going and the consequences of his plea and also a medical report or medical evidence upon him). Lacuna in section 272, Criminal Procedure Code Was also pointed out by Sen J. and Rajadhyadsha J3., observing that it did not cover a case where the accused pleaded guilty and the court did not wish to convict him in exercise of the discretion con» ferred upon the Court under section 272(2).

Case No. 30.

Umi Kom Joyaji (Bombay) (1911) Chandavarkarl and Heaton J.

A barren woman who killed another's child to get children was sentenced to death.

I.AbdulKad All kl' A.I.R.I9 B . S C. . K.C.S ' and Rajadhyakshdrjj.) a(§.l?:1.)'. 47 om 345 ( tone I ' en

2. Paragraph 4 in the A.I.R.

3. Paragraph 26 and 36 in the [A.l.R. dissenting on this 1:o:'nt from Mahamed Yusuf_ v. En.pe1-or, A.I.R.f I931, Calcutta 34r.--.I.L.R. 58 Calcutta I214, I2I9.

Y Ijudgment was by Chandavarkar I. These were conﬁrmation cases lxo. 112 & 119 of 1911, dated 23-3-I911 cited Ratanalal, (1961) p. 786 foot- note 17. (Unreported).

37 Case No. 31

Kali V. Emperor, A.I.R. 1923 All. 474 (2)--I.L.R. 45 All. 143 (Stuart J.) In this case, the Sessions Judge of Meerut requested the High Court to set aside the conviction recorded by his predecessor (and affirmed in appeal by the High Court), on the ground that on certain material that had since come to the knowledge of the District Magistrate the conviction was wrong. This application by the Sessions Judge for revision, it was held, could not be entertained. The Dist- rict Magistrate may, it was suggested, refer the matter to the Local Government for exercising its power under sec- tion 401 and 402, Criminal Procedure Code.

(The person concerned had been sentenced under sec- tion 395, Indian Penal Code to 10 years rigorous imprison- ment for dacoity. After his conviction, one B. was arrest- ed and R made a confession legarding several dacoities including this one, and said that the convicted person was not in the gang at all.).

Case No. 3.2 Bandhu V. Emperor, A.I.R. 1924, All. 662, (Stuart and S. M. Sulaiman JJ.) In this case the appellant had been found guilty by the Sessions Judge of murder under section 302, Indian Penal Code, and sentenced to death. One D had been brutually attacked with lathis and beaten into unconsciousness, dragged away along the ground, leaving traces of blood dragged by the assailants until they reached the Koilar river. D had never been seen since then. The attack was committed at about mid--night.

The High Court (on appeal) was unable to arrive at a conclusion that D was dead and therefore could not uphold the conviction for murder, 'but on the facts, the crime of an attempt to murder under section 307 was held to have been committed, and, therefore, the conviction was altered to one under that section, and the appellant sentenced to transportation for life.

Case No. 33

Ghulam Jarmat v. Emperor AIR. 1926 Lah. 271--I.L.R. 7 Lah. (Shadi Lal C. J. & Jafar Ali J.) (Judgment by Shadi Lal C.J.).

A young girl of 18 years married to a boy of 13 years contracted intimacy with another person and became pregnant and gave birth to an illegitimate child in Multan. To conceal her shame, she strangled the child. She was convicted of murder and sentenced 'to transportation for 38 life. Conviction and sentence were upheld, by the High Court. But it made a recommendation to the Local Gov--

ernment to exercise its powers under sections 401 and 402,. Criminal Procedure Code and commute the sentence to one of rigorous imprisonment for 3 years.

Case No. 34

MSt. Daulan v. Emperor, A.I.R. 1926, Lahore 144. (Scott Smith and Fforde JJ.) A woman aged 15 murdered her step-son by striking a blow on his head with a "Kahi". She an-d her husband were not getting on well, and the murder was committed to avenge herself against her husband. The Sessions Judge convicted her under section 302 Indian Penal Code-

and sentenced her to death.

On appeal, the High Court in View of the age and the' other circumstances, reduced it to transportation for life, and further recommended local Government to take action under section 401, Criminal Procedure Code.

Case No. 35.

Ram Nath V. Emperor, I.L.R. (1926) 1 Lucknow 327.- A.I.R. 1920 (Sir Louis Stauart, Chief Judge, Oudh--234 and Mohammed Raza J.) In this case, on Prag Gir (and others) had been attacked by some assailants at night with lathis. The dea-d body of Prag Gir had not been recovered, nor had he himself re- turned alive. There was some delay in making of the complaint by those who survived. The Sessions Judge had found ﬁve persons guilty of the murder of Prag Gir, but.

refused to sentence them to death, giving this reason':-

"I think it is a legitimate reasons to say that when in a case like this the dead body is not found, there. is a reasonable case where sentence of transportation may be awarded instead of the heavier sentence.".

The Chief Court "disassociated" itself entirely from this view, and stated, that the question of sentence should be determined upon the gravity of the offence irrespective of ' the circumstances whether the body or has not bee" dis- covered. A decision of the Allahabad High Court was explained as merely holding that death of the victim must be proved and not as holding that dead body must have IPagc 330 in the I.L.R. 1Bandhu, A.I.R. (1924), A11. 662.

been discovered. (On the facts, however, in View of the unreliability of the evidence, the conviction was reversed).

NOTE:--(a) To the same effect are the following cases:----

(1) Bhagirath (1880), I.L.R. 3 All. 383, 384 (Straight J.).

(2) Maya Basuva, (1950) 1 M.L.J. 428--A.I.R. 1950 Mad. 452.

(3) Bhairon Lal, (1952) I.L.R. 2 Raj 669--A.I.R. 1953, Raj. 131.

(4) Munda A.I.R. 1931 Lah. 25.

(5) In Raggha v. Emperor, AIR. 1925, All 627, 636, Middle, and 636 bottom--I.L.R. 48 A11. 88, (FE), Sir Grimwood Mears CJ. and Lalit Mohan Banerji, J. held that the absence of the recovery of the dead body should not be taken into account as regards sentence, if the court was otherwise satisﬁed about the guilt of the accused. ,,_,_._,._;,_,

(b) Mukerji, J . however, though upholding the convic- tion under section 302 read with section 114, Indian Penal Code expressed the View that the sentence should be reduced to transportation for life. He had no "reason- able" doubt about the guilt of the accused. But in view of the fact that the dead body had not been recovered, he had a doubt about the proper sentence. "There are degrees of doubt and there is no harm in being cautious." There may be a doubt which, (though less than a reasonable doubt) might still require that the Judge be cautious in passing the sentence. There were cases where, if the dead body was not recovered or the facts were not clear, the lesser sentence was given. He cited:--

(i) Queen v. Buddruddeen, 11 W.R. (Cr.) 20 (facts not given).

(ii) Queen Empress V. Gharya, I.L.R. (1895) Born.

729 where J ardine and Ranade JJ. while accepting an appeal from an acquittal, passed a sentence of trans- portation because all the facts were not clear;

(iii) Kashna (1894) Criminal Reference No. 7 of 1894 (Bombay), (See Ratan Lal, 1961, page 778). In this case the accused had thrown a girl of less than two years into a canal, where the water was deep, and swollen by the monsoon. The High Court held h.im guilty merely to attempt to commit murder.

(i) Rajkumar Singh, A.I.R. 1928. Pat. 473;

(ii) Azam Ali, A.I.R. 1929 A11. 710.

(iii) Adu Shikdar, I.L.R. 11 Cal. 635, 642, 644.

(d) For an English decision, see R. V. Onufrejczy, (1955) 1 All Eng. Report, 247 (C.C.A.) in which, a convic- tion for murder was upheld on other evidence, even though the dead body had not been found.

(e) The celebrated New Zealand case of R. 1). Harry (1952) N.Z.L.R. 111 (N.Z. Court of appeal) also holds that discovery of dead body is not essential.

Case No. 36

Tola Ram v. Emperor A.I.R. 1937 Lah. 674-I.L.R. 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 tolnse self-control on the slightest provocation. He was sent- enced to transportation for life. The High Court upheld the conviction and sentence. It also made a recommenda- tion to the State Government for exercise of the preroga- tive of mercy, under section 401 Cr. P.C. and for "substan- tial reduction" in the sentence.

[Cites following cases where similar recommendation was made-

Ramzan v. Emperor, (1919) 30 P.R. 1918 Cr.-20 Cr. L.J. 1.

Lachhman v. Emperor, A.I.R. 1924 All. 413-I.L.R. 46 All. 243--Q.E. v. Kedar, (1896) I.L.R. 23 Cal. 604].

Case No. 37

Preman v. Emperor A.I.R. 1928, Lahore 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 de- livered with a "dang" 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.

e;Case N0. 38 Harnamun v. Emperor A.I.R. 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 attack-

ing 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 cir- cumstance that the accused had no personwl 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 Shuﬁ Khan v. Emperor A.I.R. 1929, Patna 161, = I.L.R. 8 Patna 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 implicat- ed in various dacoities and robberies. There were com- plaints of thefts against them, and also a proceeding under section 110 Cr. P.C.\' pending against them. One prosecu- tion witness in one of these proceedings lodged an infor- 'mation 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 investi'g_ation. Thereafter, a party consisting of cons- table M (deceased) and another constable, etc., was sent 'to arrest the appellants by the Sub-Inspector. Two hours I Judgment through slip' mentions Indian Penal Code.

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 inci- dent, 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 immediate- ly 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 continu- ed, 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. ("id J. were arrested by force by the police.

The High Court, while conﬁrming the conviction, re- jected 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 un- desirable 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 un- sound. In its opinion prima facte all the persons convict- ed 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 tak- ing 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).

Case No. 40

Emp. v. Dukari Chandra Karmakar, A.I.R. 1930 Calcutta, 193, 33 C.W. No. 1226 (C. C. Ghose J. on difference of opinion between Cuming J. and S. K. Ghose J.) Accused was charged with murdering his wife. The wife was staying with her father, and apparently there 43 was at the time of marriage some arrangement that accus- ed 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 even- ing 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 up- stairs 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. Cuming J. observing that it was a cruel and brutal murder perpe- trated 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 J E' regarded the sentence of transportation for life as sufficient. First, he pointed out, the murder' was committed in a ﬁt of desparate resentment in circum- stances for which the accused was not entirely to be blam- ed. 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 I. The iudgrncnfof S.K. Ghose ]. was regarded as illuminating by the editor of the C.W.N. See (1929) 33 C.W.N. (journal) page 185.

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 chi-ldren.) The provision in the Criminal Pro- cedure 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 punish- ment ﬁtted thecrime. Reasons for death sentence, it was true, were not required to be stated by any express provi- sion 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 sec- tion 367 if I were to hold that the prisoner should be sentenced to transportation for life." (Apparently, he agreed with S. K. Ghose J. on the interpretation of sec-

'tion 367 Criminal Procedure Code also, though the point is not discussed in his judgment.) 'Case No. 41 Emperor v. Bhagwan Din A.I.R. 1931, Oudh, 89(1) (Raza and Pullan JJ.) Accused was found guilty of murdering a small boy of six, for his ornaments. He was sentenced to transporta- tion for life. For imposing the lesser sentence, the Sessions Judge had given three reasons----(i) the accused was a young lad of 18; (ii) he may still reform; and (iii) there was no premeditation. The Local Government ap- plied in revision for enhancement. The Chief Court heard the appeal of the accused also regarding conviction.

' The Chief Court upheld the conviction.

As to sentence, the Chief Court observed that there is no law which justiﬁes a court in not passing a sentence of death on any person merely because he is young. All persons who can understand the nature of their acts are liable to the extreme penalty of the law. Youth may be taken into consideration where the accused is not able to understand the nature of his act or acts under the inﬂuence of others. But this was deliberate murder for greed. Next, the consideration that the accused may still reform 45 "should be excluded entirely in all questions where a capital sentence can be inﬂicted. It is not for the legis-

lature to reform murderers." The sentence of death was primarily a deterrent one. The lesser sentence was im- posed where some extenuating circumstance was there and it was not necessary in the interest of the public at large that the sentence of death should be inﬂicted. The sentence was enhanced to death.

Case No. 42

Tiri v. Emperor A.I.R. 1931, Rangoon 171 (Maung Ba and Dunkley JJ.) Youth alone is not an extenuating circumstance, but it can be taken into consideration with other facts.

In the case under discussion a young man, probably under 18, had been sentenced to death for murder of his own uncle because of some dispute regarding ﬂow of water in a channel. The injury was an incised wound, cutting right through the spine. The High Court dismissed the appeal of the accused against the conviction, and regarded the sentence as quite proper, as this was a cold-blooded and premeditated murder at a time when 'the deceased was peacefully engaged in his plough and was unarmed.

Case No. 43

A-ung Hla v. Emperor. A.I.R. 1931, Rangoon 235--I.L.R. 9 Rangoon 494 (Special Bench). (Page C.J. mya Bund Baguley JJ.) (Judgment by page C.J.) In this case, 103 persons in all were charged under sec- tion 131, Indian Penal Code (waging war against the King). Of these, 15 were sentenced to death. 56 to transportation for life, 5 discharged, 24 acquitted and there were found to have absconded. Persons sentenced to death or transporta- tion for life appealed to the High Court, and the High Court also served notices against 23 of the accused for enhancement of their sentence of transportation to death. Ultimately, the High Court conﬁrmed the conviction of several persons, and enhanced the sentences of 3 persons. It stressed the gravity of the offence under section 121 describing it as the most grievous offence that can be com- mitted against the State, and said, that rebels who waged war were guilty of the most heinous of all crimes. The judgment also contained a lengthy discussion of the mean- ing of section 30. Evidence Act. (Waging war in this case was constituted by deliberate attack on the armed forces, to prevent collection of taxes).

46 Case No. 44

«Gul V. Emperor, A.I.R. 1932, Lahore 483. (Agha Haidra J.) This was a case of rape of a young girl, discussed here to show the unusual circumstances in which it was com- mitted. The girl aged. 16 or 17 years had gone to the hills for cutting grass with her sister and other young children at about "rotiwela" (between 10 and 11 in the morning) M and A (accused) met them. Both were armed with a gun, and M also carried a big dagger. They got hold of the girl and dragged her to the hills. On her offering 1esist- ence, M struck "her several times with the buttend and of the gun. The accompanying three children could oﬁer no resistence and returned to the village. Before help could come, the girl had already been raped by M (apparently, twice). She was alleged to have been raped by A also.

The trying Magistrate (empowered under section 30 riminal Procedure Code) had sentenced both M and A to three years' rigorous imprisonment under section 366, and as regards the offence under section 376 Indian Penal Code M was sentenced to three years' and A to one year's rigorous imprisonment. The sentences were to run con- secutively.

The High Court, while dismissing their appeal, enhanc- ed the sentence of M under section 376 from three years' to ﬁve years, in View of the circumstances of the case and in view of the fact that the accused were armed with dead- ly weapons and by a show of brute force they overawed the children and ragged away the girl at the point of the gun, and committed rape. (A was acquitted of rape, as his part in relation to 'fiat offence was not very clear.).

Case No. 45

Nawab v. Emperor, ALR. 1932 Lahore, 308 (Shadi Lal C.J. & Abdul Qadir J.) (Judgment by Abdul Qadir J.) This was a case of murder committed by youth of tender age, who was provoked by the conduct of the de- ceased in having sexual intercourse with a relative of the accused in an open manner three days before the murder. Case was recommended for exercise by the local Govern- ment of its prerogative of mercy.

(Age of the Youth was taken to be 15 or 16 years.).

Case No. 46

Kartar Sirzgh v. Emperor, A.I.R. 1932 Lahore 259, 260. (Tek Chand & Jai Lal JJ.) (Judgment by Tekchand J .) This was a case of young boy of 17 years participating in murder under the inﬂuence of his father and elder 47 brother. He was sentenced to transportation for life b)' the Sessions Judge. High Court agreed, and also recom- mended to Local Government to reduce it under section 401 Criminal Procedure Code to four years' rigorous imprisonment.

Case No. 47

Mt. Dhulan V. Emperor, A.I.R. 1934 Lahore 31. (Jai Lal and Bhide JJ.) (Judgment by Jai Lal J.) A woman of 20 years and weak intellect was turned out by her husband on account of her Weak intellect and led a roaming life. She became pregnant and was turned out by the relations. She gave birth to a child. Owing to poverty and i1l--treatrnent by the relations, she threw the child--a girl of 11 days--in a pond. She was sentenced to transportation for life by the Sessions Judge.

, >4.

The sentence was affirmed by the High Court. But in View of the circumstances, recommendations was made by the High Court to the Local Government for reducing the sentence to one one year's, rigorous imprisonment under section 401, Criminal Procedure Code.

Case No. 48

Kaim A.I.R. 1935, Sind 44, 46 (Ferrers J. C. and Dadiba C. Mehta A.J.C.) It was held that the Baluchi custom of killing for unchastity is not a mitigating circumstance.

Case No. 49

Emp. V. Mominuddi Sardar A.I.R. 1935. Cal. 591, 594, 595. (Patterson and Cunliffe JJ.) (Judgment by both) Penitance of the accused is not a ground for imposing the lesser penaltyl. (Nor is the fact that accused is the only son of his widowed mother). But penitence can per- haps be taken into account by the local Government.

(Sentence was, however, reduced in this case on other grounds----that of provocation and the age of the accused, who was 22 or 23 years).

IThere are, however, ooservations in Emp. v. Nirmal jiban A.I.R. 19355 Cal. 513, 525 which suggest that if the accused who were young had expressed, remorse for their offence, court might have imposed lesser penalty.

IParagraph 8 in the A.I.R. 48 Case No. 49A Emp. v. Nirmal Jiban A.I.R. 1935, Cal. 513, 525, 526 (Costello, Bartley and Henderson JJ.) In this case, the High Court conﬁrmed the sentences of death on three persons--terrorists convicted of by the Com-- missioners (Special Tribunal) appointed under the Bengal. Criminal Law Amendment Act, 1925 of the murder of Mr. Burge, District Magistrate, Midnapur. The Commis- sioners, while noting their "extreme youth" (exact age- not given in judgment), had also observed that the object of their activities was a "deadly" one. The High Court agreed and stated that if the accused had shown that they were impressionable youths dominated by others and had expressed regret, extenuating. circumstances might have- been pleaded. But that was not the case here.

Case No. 50

Rangappa Goundan (1935), I.L.R. 59 Madras 349 It was held that consent or admission by the Advocate of the accused to dispense with the medical witness in as murder case cannot relieve the prosecution of proving the nature of the injuries and the fact that they caused death. (It was also held in this case that a post mortem report is no evidence and can only be used to refresh the memory of the person who prepared it.) Case No. 51 In re Rangappa Goundcm A.I.R. 1935 Lahore 337.

(Cornish and K. S. Menon JJ.) (Judgment by Cornish J.) I.L.R. 16 Lahore 1137.

Young C.J. and Abdul Rashid J. (Judgment by the Chief Justice) In this case the High Court enhanced the sentence of transportation for life to death in the case of all the three accused. The facts of the case were, that the three accus- ed murdered one P who was acting as a lambardar and who used to assist the police in criminal matters. He used' to give information to the police concerning crimes com- mitteed by two of the accused. Some days before the- murder, a relation of one of the accused told P that he should stop giving information to the police, failing which something would happen to him. Thereafter, P and his:

nephew were attacked by the three accused who had hid- den themselves to wait for P's arrival. 15 injuries were 49 inflicted on P, out of which 10 were on the head. The Sessions Judge awarded the lesser sentence on the ground that it could not be said which of the accused gave a fatal blow.

The High Court rejected this approach. The mere fact it was impossible to say who actually inﬂicted the fatal wound was not a reason for a lesser punishment when the court was satisﬁed that there was a common intention to murder, brutally carried out and that all persons took part in the beating, the result of which was death. In this case there were no less than 10 wounds on the head; and pro- bably each of the accused gave a blow on the head; the only other alternative was that While only One accused was beating the head, the others were giving blows on the body. It would make no difference if either of these alter- natives was the fact. Hence the sentences were enhanced to death.

Case No. 52- Aziz Begum v. Emperor.

A.I.R. 1937 Lahore 689, 691.

(Young C. J. and Monroe J.) (Judgment by Monroe J.) A girl of less than 17 years was a party to a murder in which her husband and others were the chief actors. Her statement as approver led to a sucessful investigation and to the conviction of the principal criminal, though she failed to earn her pardon. She was sentenced to transpor- tation for life, by the Sessions Judge, after conviction under section 302.

The High Court, while conﬁrming the conviction, ob- served that her situation was not an enviable one, since the husband and mother were determined on the murder. Her statement had led to successful investigation and con- viction of the criminal. She had already suffered by the birth of her child in jail. Recommendation was made to Local Government to reduce the sentence of transporation of life, under section 401 Criminal Procedure Code.

Case No. 53.

Infanticide by young mother (of her own son) Mt. Talian v. Emperor.

A.I.R. 1938 Lahore 473 (D.B.) (Young C.J. and Monroe J.) (Judgment by Young C.J.) Need for lenient view was stressed on the ground that child-birth occasionally produced peculiar reaction. Sen- tence of transportation for life upheld, but Government was requested to reduce it to short period-.

5-122 M of Law.

Case No. 54- Mahabir Singh v. Emperor.

A.I.R. 1946 Caltutta 36--I.L.R. (1944) 2 Calcutta 287.

Five persons were convicted under sections 396 and 120B /395 Indian Penal Code. The Sessions Judge refrain- ed from passing the death penalty, as the murders (of 3 persons) could not be speciﬁcally ﬁxed on any one of the accused. He sentenced them to eight years' rigorous im- prisonment. The High Court enhanced the sentence to transportation for life.

In view of the fact that the prisoners were tried before the Sessions Court in December, 1942, and a certain amount of delay was occasioned by the necessity of making a re- ference to the Full Bench, the High Court refrained from passing the death sentence. But for this, the High Court observed, it could imagine no more suitable case than this for the maximum sentence. It observed, that it was p1'eci- sely for such a case that section 396 was enacted.

Case No. 55.

Emperor v. Ram Singh.

A.I.R. 1948, Lah. 24.

(Marton and Khosla JJ.) (Judgment by Marton J ._) In this case, on an appeal by the State, the High Court set aside the acquittal of the respondent for the murder of a woman. While noting that considerable time had elapsed since the acquittal by the Sessions Judge was an- nounced, the High Court awarded the sentence of death in these words 1--

"I, however, feel strongly that the learned Ses- sions Judge should undoubtedly have sentenced Ram Singh to death and as there are not intrinsic circum- stances warranting leniency, I consider it the duty of this Court now to do what should have been done at the trial".

It appears that before committing murder, the accused had sexual intercourse with the woman murdered and so also had the approver. After the murder, the accused and the approver robbed the Woman of ornaments.

Case No. 56.

Garden Stngh V. Emperor AIR. 1948, Lab. 53.

(Muhammad Munir and Mohd. Jan JJ) (Judgment by the former.) In this case, the High Courtcnhanced 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 impos- ed the sentence of transportation for life on the ground that all the accused were young men of 20 or belou_> and none of the injuries inﬂicted to the deceased were indivi- dually fatal. The High Court strongly criticised this atti- tude. 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 recog- nised 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 circums- tances' but it made it clear that the classiﬁcation was not exhaustive or absolute). It regarded age as insuﬂicient ground for leniency, since the offenders were not of ex- treme 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.

Case No. 57.

Kali Charan V. Emperor.

A.I.R. 1948 Nagpur 20(2)---I.L.R. 1947. Nagpur 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 re- lations, 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 I . Paragraph 8 in the A.I_R, 52 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 en- raged 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 in- juries 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 daugh- ter of the accused's brother-in-law.

On his appeal to the High Court, the High Court con- ﬁrmed 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 experf 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 mur- ders. He was completely unhinged, and had lost the bal- ance 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 transporta- tion for life and also recommended to the Provincial Gov- ernment that the case may be dealt with under section 401, Cr. P.C. As precedents for its recommendation, it cited the fol- lowing cases 2- (1) Tola Ram v. Emperor, A.I.R. 1927 Lah. 674- I.L.R. 8 Lahore 684;

(2) Emperor v. Gedka Goala, A.I.R. 1937 Pat. 363- I.L.R. 16 Pat. 333;

(3) Ramadhtn v. Emperor, A.l.R. 1932 Oudh 18- I.L.R. 7 Lucknow 341.

Case No. 58.

Amru v. The Crown.

A.l.R. l'f}5i). East Punjab 159. (Kapur and Soni JJ.) (Judgment by Kapur J.) "fine appellant and one R attacked B, using a kirpan and a barchha. 8 received 24 injuries and died instantaneously. Ezlotive of the crime was dispute regarding niuiaiiuii of certain estates gifted in favour of R' and others. The Ad- ditional Sessions Judge convicted the appellant of the offence under section 302 Indian Penal Code and sentenc- ed him to transportation for life. His reason for impos- ing 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 impos- ing the lesser sentence as inadequate. The murder was of a brutal kind and there were no extenuating circum- stances. That appellant did not sta.nd to gain was not such a circumstance. However, though the State made an ap- plication 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.

Charan Das v. The State.

A.I.R. 1950, East Punjab, 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 Haranam 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 N and a woman Rani were injured. Rani succumbed to her injuries. On these facts Charan Das and Harnam Singh were tried before the Additional 3% Sessions Judge, Ferozepur. Charan Das was charged un- der 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 convict- ed Charan Das under section 302 and sentenced him to transportation for life.

h Court, the High Court main-

On appeal to the Hig tained the conviction. The defence of the appellant was that he had acted in obedience to the orders of his sup-

perior. 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 supe- rior 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 sen- tence of transportation which was the minimum required by law, it recommended to the State Government to re- duce the sentence to three Years' rigorous imprisonment under section 401, Criminal Procedure Code. The case was not one of ordinary murder and hence this recommenda-

tionl.

Case No. 60.

Ulla v. The King.

A.I.R. 1950 Orissa 261,--I.L.R. 1950. Cuttack 293.

(J agannadhadas 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 stand- ing 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 e appellant ever would cut the appellant in pieces if th 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 side of the chest just below the collar bone. Ranka fell down and died on the spot. The appel- lant was convicted under section 302 and sentenced to transportation for life. The Child witnesses we believed, whose evidence found corroboration in Doctor's statement.

' I." See also Subba, I.L.R. 21 Mad. 249 as to obedience to orders of supe- IIOIS.

on appeal to the High Court, the conviction was con- firmed. The argument that the offence was one of culp- able homicide not amounting to murder because of provo- cation 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 Refor- matory Schools Act, 1897 recommended detention in a re- formatory school for ﬁve years (instead of transportation for life).

Case No. 61.

Serajuddin V. State A.I.R. 1951 Allahabad 834 at p. 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 lirr,i:.- ed extent that death sentence is the normal sentence Lo; a capital offence. The Indian Penal Code leaves it to the Judges judicial discretion to decide whether he should pass a sentence of death or transporation for life (or any other sentence permissible under law). He has to con- sider the question whether the case is one where a sen- tence of death should be passed or a lesser sentence, though no Jvdge would pass a sentence of death (where it is pro- per to pass a lesser sentence) merely because he has to give reasons for the lesser sentence.

Case No. 62.

In re Palaniswami Coundan A.I.R. 1952 Madras 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 Chellayyaw--

A.I.R. 1954 Trav.-Cochin 435-I.L.R. 1953 T.C. 1062 (Koshi C.J. and Kumara Pillai J.) (Judgment by Koshi C.J.) Under the Travancore Penal Code, as amended by Pro- clamation 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.

A.I.R. 1953 Travancore-Cochin. 402 I.L.R. 1053 (I) P.C. 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. The State.

A.I.R. 1953 All. 220 I.L.R. (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 res- pectively 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 faci- litate h's 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 sen- tence (The convictions were upheld).

Aggrawala J. maintained that section 367 (5), Criminal Procedure Code (as it stood then) gave an absolute dis- cretion to the court as regards imposing the sentence of death. He also expressed the view that the Judge had to keep pace with the timesl, 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 modern 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 award- ed. "To my mind the true principle of exercising the

1. Contrast In re F,'a1r:."m'f(: A.I.P.. 1939 Mad. I09, I12.

discretion of imposing either the penalty of death or of transportation for life should be that the sentence of deatn is awarded in cases in wh.ch the act is very brutal and. highly repugnant to morals and the sentence of transpor- tat.on for life is imposed in all other cases".

in his view, out of the four classes of murder mention- ed in section 300 and its four clauses, the sentence of death should be restricted to-----

(J) 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 circum» stances exhaustively or to lay down any hard and fast :'1le. Each case will have to be decided on its own facts. bome 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 considerej too _'lQ'}I1g for death sen- tence. Similarly a person above the age of 70 be too old for death sentence;

(2) where persons under 20 acting on the insti-

gation or inﬂuence of elders;

(3) where murder is committed during a sudden. quarrel and without premeditation or on the im- pulse, though the case does not fall under the excep- tions 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 accus- ed neither took part in the beating nor instigated others to do so;

(6) Several persons are involved in the murder and only one deat'.o?=:ca1.i9ed and the .ctv'ons of several accused are -zen:-.'ole of being graded in the . D . -

matter of causing death. For example, where one per- hich bring about the death and son inflicts injuries w .

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--1eaders. 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 hold 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 sec- tion 367(5) left any discretion to the Court. He cited several cases1 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 mere- ly 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 trans- portation for life, he agreed with the order proposed for such commutation.

Case No. 66.

In re Govindaswami.

A.I.R. 1953 Madras 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) (surved 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 instan- taneously. (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

1. Local Government v. Sit yaA ' na, A.I.R. I N . I R d A.l R. 1943 Mad. 69, 71; I.L.rR. Iq:1]3;'Mad. r48 Ggggev 2:S:g£n2v(I):7v.'l5rn:p., 10-18 Lah- 53, 51. 62 (Munir I-) Naresh Singh v. Emp., A.I.R. I935 Oudh

265. '

2. Rajagopalan v. Emperor, I944, F.C.R. 169; A.I.R. I944 F.C. 35.

to transportation for life only, as the accused mad com- mitted the murder in the fear that G was intending 'to make a report against him at the police station regarding som-e theft committed by the accused.

Mack J. disrmssed 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 defer- ence 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 ofa complaint being made against him of theft could be taken into consideration as an ex- tenuating circumstance.

Case No. 67.

Kanji v. The State A.I.R. 1953, Rajasthan 40-I.L.R. 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 drink- ing. At about 6 p.m. while the deceased boy was picking raw mangoes in the "bags-echi" 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 appe1lant'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 par- ticular person. In the case before the court, further the GU 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:---

(in) 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 in- tercourse w3th 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 see 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 evi- dence for motive and the appellant was certainly drunk, the sentence was reduced to transportation for life'. In support of the reduction of sentence in case of intoxication, the following cases were cit-ed:----

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

(b) Judagi Mallah v. Emperor, , A.I.R. 1930 Patna. 168.

Case No. 68

Gudder Singh v. State, A.I.R. 1954, Punjab 37,--I.L.R. 1954. Pun. 649.

Falshaw and Kapur JJ.

(Judgment by Kapur J.) G and B were convicted of murder in these Circum- stances. 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 Gov-

ernment of India had given to villagers under the Border I. For similar facts in a latter l'epsu case where this Rajes.h;n c_-39 i ; cit~ d. ser-- ' Basdev v. State A.I.R. 1955- Pepsu 165,. I69. 170 paragraph 24. 2:, where also the lesser senwnce was held as mstiﬁe'. It cited several cases 3130 as I » eﬂect of intoxication.

Defence Scheme at the time of the formation of Pakis- tan. After some time, 70 or 80 p-ersons of the village in- cluding 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 oﬁicials. 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 re- gards the sentence on G, because of the fact that he had been in custody from May, 1951, the High Court substi- tuted transportation for life in place of death.

Case No. 69

In re Muniyandi, A.l.R. 1954-, Madras 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 ﬁxed four shots at him, which resulted in his death instantaniously. Imme-

diately, the appellant went to remove the money bag. The accountant tried to prevent him, whereupon the appel- lant 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 802 read with section 34).

9'2 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 convict- ed under section 302 read with section 34, was repelled.

"VVhen 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 further- ance 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.

(No'rE:--(i) As regards section 34, the court re- ferred to B. K. Ghosh v. Emperor, A.I.R. 1925 P.C. 1-- I.L.R. 52 Cal. 197 followed in Ramaswami v. State. A.I.R. 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

In re. Palani Moopan A.I.R. 1955, Madras 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 63 with his "co--brother-in-law", that there were 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-1n- law "my husband is not keeping me properly. I W111 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 appel-

lant 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 in-

solent answer given by the wife.

intimacy .

some misunderstanding Case No. 71 Khan v. The State A.I.R. 1955 Calcutta 146 (Chakravarti C.J. and P.B. Mukherjee J.) (Judgment by Chakravarti C. J.) Appellant K had in this case been convicted under sec- tion 302, Indian Penal Code and sentenced to death, while appellant A had been convicted under section 302 read with section 109 and sentenced to transportation for life. The trial was held in the Sessions Division of the High Court of Calcutta by S. K. Sen, J. They both appealed.

The facts were these. While the deceased was engaged in conversation with one G, the two appellants came up. The deceased told the appellants that he was having some private conversation with G and they were intruding and should move away. Appellant K said that he had no in- tention to do anything of the kind and challenged the de- ceased to do What he could. The deceased repeated his request, but without any heed. Hence the deceased put his hand on the back of appellant K and pushed him a few cubits, whereupon appellant, A shouted out to appellant K to strike the deceased down. Appellant A also grabbed the deceased by the hands and held him fast. Appellant K whipped out a knife and inﬂicted several injuries on the person of the deceased, who later expired in the hospital in the night.

The High Court, while conﬁrming the conviction, re- duced the sentence on K to one of transportation for life 64 in View of one feature of the case, "which bears very per- tinently on the question of sentence and requires atten- tion". That was this'. After the appellants had refused to quit the place, it was the deceased who ﬁrst laid his hand on Appellant 'K' and further started push1ng--the pushing being of a somewhat vigorous kind. He was re- sisted because each was pushing the other, and it was during such affray that the knife was suddenly whipped out and steel took the place of bare hands. "In those circumstances, it appears to me that although no sudden and grave provocation, such as would reduce the crime from murder to a lesser offence can be made out, yet there was such provocation as bears pertinently upon the question of sentence, even if the provocation might have been caused by the conduct of the ﬁrst appellant him- self and, therefore, might not be a lawful excuse for the act done by him". Hence the extreme penalty was not called for. There was pushing, pushing for considerable time and pushing between men who are notoriously or excitable nature. (The Court made it clear that this did not mean that an excitable person is entitled to go about in the streets and do people to death whenever his will is opposed. In this case, the physical assault was commenced by the deceased and when the struggle grew, the fury of the ﬁrst appellant fanned by the second appellant rose). Hence the sentence on ﬁrst appellant 'K' was reduced. (The sentence on the other appellant was maintained).

Case No. 72

A.I.R. 1955 N.U.C. Bombay, 2977-C Shim-udrappa v. State (Dixit and Gokhale JJ.) Youth by itself is not a suﬂicient reason for imposing the lesser penalty for murderz.

Case No. 73

Sabir v. State, A.I.R. 1955, N.U.C. All. 2279. (Beg and Chowdhry JJ.) xzcuscd being only 22 years old is no reason to award lesser punishment.

1. See paragraph 29 in the A.I.R.

2. Sea to the same eﬁect----Prodvot Kumar v. Emp. A.I.R. I933 Cal. I.F.B. "under age". Exact age not menticnel in judgment).

A.I.R. 1955 N.U.C, Bombay 4251. State v. Namdeo (Chainani and Gokhale JJ.) This was a case of an attack which resulted in four i':'1-_'_';'ClE"1'S and severe injuries to six others. Numerous assailants took part in the attack, but it was difficult to attribute any particular fatal injuries to any particular accused. Court refrained from imposing death sentence.

Case No. 75

Nathu Lal v. State A.I.R. 1955, N.U.C. All 2289. (Agarwala and Roy JJ.) That the accused was drawn into the murder as a birelltng is no extenuating circumstance.

Case No. 76 ' (Subba Rao C. J. and Satyanarayana Raju J.) (Judgment by Subba Rao C.J.) In 7'8 Munirathnam Reddy, A.I.R. 1955, Andhra 118.

Accused, a student of college, below 21 years, shot the deceased when he abused him and his father. He was a man of good antecedents. He was sentenced to transporta- tion for life, but the High Court recommended his case to government to take action under section 10A of the Madras Borstal Schools Act (Act 5 of 1926).

Case No. 77

In re Shtvanna A.I.R. 1955 Mysore, 17--I.L.R. 1954 Mys. 469.

In this case, there was difference of opinion between Medapa C.J. and Vasudevamurthy J. as to whether the accused where guilty of murder. The case was based on circumstantial evidence as to possession of stolen articles of a women murdered. The case was referred under sec- tion 429 of Criminal Procedure Code to Mallappa J. who acquitted the accused.

6--122 Law.

66 Case No. 78

Atma Singh V. State A.I.R. 1955, Punjab 191.

Bhandari OJ. and Falshaw J.

(Judgment by Falshaw J.) There was some dispute between the appellant's father on the one hand and the father of the deceased on the other (both Jats) regarding irrigation of land. A pan- chayat was called to settle the matter, and at that pan- chayat the appellant and his father had kept in their possession spear and a stick respectively While the meeting was going on. The discussion developed into an exchange of abuse between the father of the deceased on the one hand and appellant's father on the other hand. At the sound of the exchange of abuse, the appellant's brothers ran out of their house armed with sticks and the deceased came out of his father's house. On the arrival of the deceased, the appellant and this father and brothers set on him and the appellant spread him on the left side of the chest while others gave him a blow with their sticks. The deceased died the next day as a result of this spear injury which had penetrated to a depth of 4% inches in- Juring the left lung. The appellant was convicted under section 302 and sentenced to death by the Sessions Judge. (His father and brothers were also tried but acquitted).

On appeal to the High Court, the argument was that the case fell within the fourth Exception to section 300-- culpable homicide committed in the heat of the moment and without premeditation and in the course of a sudden ﬁght following upon a sudden quarrel--Was rejected. The High Court pointed out that the deceased had not come out with a weapon, nor had attacked or tried to attack the appellant or the other accused with any weapon. The accused had not laid any such evidence or put question on that line in cross-examination to any prosecution wit- ness. It was his duty to prove that the case fell within the Exception which he had not discharged. Moreover, even if the deceased had come with a weapon, there had been no "fight" because it takes two to make a ﬁght. The deceased had not aimed any blow at the appellant. Hence the conviction under section 302 was conﬁrmed. But the sentence was reduced to transportation for life, after making these observations:---

"It is, however, clear that Atma Singh speared Shangara Singh in the heat of the moment and in the course of a sudden quarrel and that the murder was not premeditated."

67 'Case No. 79

Bansi v. The State A.I.R. 1956 Allahabad 668, 670. _ -.

Raghubar Dayal and B.R. James JJ.) (Judgment by the latter).

In this case, 'B' a Brahmin, was convicted of the murder of a 'Bhangi' woman. It appears that a small pig belonging to the Bhangi woman entered the house of the accised and deﬁled it. This enranged the accused and he tried to seize the animal and began hitting it with a lathi. The woman asked him to spare the animal, promising that it would not stray in future. Thereupon the accused hit the woman with a number of lathi blows, and both the woman and the pig fell down and died. The Sessions Judge convicted him under section 302 Indian Penal Code and sentenced him to transportation for life.

On appeal to the High Court, the interpretation of sec- tion 300, clauses Secondly and Thirdly, was discussed and it was pointed out (in reply to the argument that there was no intention to cause death) that the accused was liable under the Third Clause of section 300, because the bodily injuries were sufﬁcient in the ordinary course of the nature to cause the woman's death. This was in view of the circumstances detailed below, namely, use of a lathi, ferocity of the blows, fact that the Victim was a woman and fact that the blows were given in the chest and abdo- men. lacerating the liver and the spleen. The Court con- ﬁrmed the conviction. Regarding enhancement of sentence its observations was:--

. "Since the Learned Trial Judge has himself awarded him the lesser sentence for this offence no re-considerw tion of the sentence 1S possible."

Case No. 80

State V. Pandurang A.I.R. 1956 Bombay 711.

(Gajendragdkar and J. C. Shah JJ.) (Judgment by Shah J.) The accused had enmity with the deceased and to wreak vengeance he planned his murder and carried it in- to execution in a cold-blooded manner. The Sessions Judge iﬁntencsd hlm _t0 transportation for life, while convicting im pun er section 302, Indian Penal Code and also order- ed him to pay a ﬁne of Rs. 500/-.

The High Court, while conﬁrming the conviction, en- hanced the sentence to one of death. (The sentence of fine was set aside as the offence was not committed for any monetary gain.) The Court observed, that the normal sen- tence for murder was death, and the discretion in award- ing the sentence must be judicially exercised. In the in- stant case, there was no extenuating circumstance. Some 2 or 3 years ago, the deceased and his brothers had been convicted of an offence under sections 323 and 324 Indian Penal Code against the accused, but that could not justify the accused to argue (as was done in the Sessions Court) that they were in danger of their lives. If, with a View to taking the law into his own hands, the accused planned murder for wreaking vengeance, the proper sentence should be death and not lesser one. Sentence enhanced.

Case No. 81

State of Bihar v. Ramautar Singh A.I.R. 1956 Patna, 10, 15. , (Ahmad and Sahai JJ.) (Judgment by Sahai J.) The appellant had been convicted by the Sessions Judge of murder of one M and sentenced to death. (He was also convicted of an attempt to commit the murder of M's daughter). On the Thursday preceding the day of occur- rence a bullock belonging to the appellant's family had died. On Saturday, the appellant's father went to one "Bhagat", who told him that bullock had died due to witch- craft practised by M. Annoyed at this, the appellant, be- fore sunset, came with a "tangi" in his hand to the field in which M and his daughter was watching the crops. He gave several blows to M and killed him on the spot and dragged M's body to a well at a distance of about 195 feet and threw the body in that well. M's daughter raised hue and cry, whereupon the appellant began to throttle her with the intention of killing her. But one person heard her cries and came to the place of occurrence, whereupon the appellant left the daughter and went away saying, that he would kill her mother.

The High Court, while conﬁrming the conviction on both counts, reduced the sentence to one of transportation for life. ~ Making these observations 2 --

"The appellant belongs to a backward class and he is aged about 20 to 22 years. Obviously, he believed that deceased Mangan Singh practised witchcraft and was responsible for the death of his bullock. As it I. Page 715, paragraph 9 in the A.I.R. 69 seems to me that he under the stress of great emotion, I think that the lesser sentence will meet the ends of justice in this case.''.

Case No. 82

In re Thothan, AIR. 1966, Madras 425.

(Somasundram and Ramaswami Gounder JJ).

(Judgment by Somasundaram J.) The appellant, aged about 40 years, stabbed his wife aged only 16 years. It appears that the appellant's wife started frequently going to the house of a cousin of the appellant and became intimate with him, and did not stop the iminiacy in spite of the protests of the appellant. One day, the appellant was sleeping in the "pial" of the house and his wife was sleeping at the threshold of the house, when the appellant heard a noise caused by the beating of the coconut leaves with which the deceased was cover- ing herself. Appellant asked her as to what the noise was, and she replied that she was driving away mosqui- toes. He again asked his wife as the dog was barking, but the wife gave no satisfactory reply. Next morning, the appellant questioned her about the previous night's inci- dent, and the wife gave no satisfactory reply. On return- ing fiom the ﬁeld, the appellant was found sharpening a knife in the presence of the deceased and on being ques- tioned, he replied that he was doing so to cut a goat. The wife left his place and went to her uncle, being disgusted with her husband's threats. A few days after, that, the appellant stabbed and killed his wife. He was convicted to murder by the Sessions Judge and sentenced to death.

The High Court conﬁrmed the conviction and sentence. An argument was advanced before the High Court that the conduct of the deceased provoked him to commit the act, that the girl was unfaithful to him and that in spite of repeated requests and threats the girl presisted in going to Ms house and that in a ﬁt of passion the appellant stab- bed her. High Court did not agree and pointed out that the appellant had been sharpening his knife even in the presence of the deceased and intended to use the knife against the deceased. There was no circumstances at the time of the commission of the offence which could be taken into consideration for lesser penalty.

As regards the recommendation of the Sessions Judge with regard to the desirability of commuting the sentence to one of transportation for life, the High Court observed that it was for the Government to consider whether it was fit case for such commutation.

70 --* ', _.

Case No. 83

Prem Narain vs. State (Mukherji and Choudhary JJ.) (Judgment by Mukerji J .) A.I.R. 1957 Allahabad 177 On the facts in view of the y0uth of the accused.

the sentence was commuted to imprisonment for life.

Case No. 84

Haﬁzullah vs. State A.I.R. 1957 Allahabad 377.

(Roy and Sahai JJ.) (Judgment by Roy J .) This was a case of the accused giving the deceased a number of incised Wounds with a sharp weapon like a knife, which entered the ribs, causing rupture of the peri- toneum and the abdominal cavity and entering into the stomach, the liver and the spleen. Sentence of death was held to be the proper sentence.

Case No. 85

State VS. Shankar A.I.R. 1957 Bombay 226----I.L.R. 1958 Born. 1092. (Dixit and B. N. Gokhale JJ.) (Judgment by Dixit J .) In this case, 5 members of a family and a servant were killed by the accused persons. Those killed included a six months' old child. Injuries inﬂicted numbered 67. The Court described it as a shocking crime which would per- haps remain "unsurpassed in its ferocity". There was a deliberate conspiracy to commit the murders and the con- spiracy was carried out in a planned manner. Some of the accused persons were acquitted and the remaining con- victed, and out of those convicted some had been sentenc- ed to death by the Sessions Judge. The conviction was under section 302 read with sections 34, 109 and 149, In- dian Penal Code. The proceedings before the High Court comprised conﬁrmation, State appeal against acquittal and appeal against conviction by those convicted. The im- portance of the case lies in the observations regarding sentence and the ﬁnal order passed reducing the sentence of accused Nos. 10 and 11 from death to imprisonment for life.

The principle on which the reduction Was ordered Was, that where several persons were involved in a murder' and evidence was forthcoming to show who were the per- sons who actually assaulted, then in a proper case the court should discriminate 'between the various accused on the ground of their major or minor part in the occur- rence. After discussing several cases on the point whether in a case of vicarious or joint liability or liability for com- mon intention for the act of others, the court should dis- criminate, the Court came to the conclusion that if a just 71 decision is to be arrived at, the Court Sh0ll1d f0110V_V the principle laid down in Dalip Singh V. State of Punjabi to the eﬁect that in cases where the facts are more fully known and it is possible to determine who inﬂicted the fatal blows and who took a lesser part, it would be a sound exercise of judicial discretion to discriminate in the mat- ter of punishment. The Court was not prevented from doing so by the later Supreme Court case of Rishideo V. State'-', holding that the mere fact that the appellant did not inliict a blow did not justify a lesser sentence. The Court referred to What is known as the "Bawla murder case"--Emperor V. Shaﬁ Ahmed decision dated 23rd May 1925 (referred to in 31 Born. Law Reporter 515) in which there was a charge of criminal conspiracy, and Crump J. in awarding sentence upon several accused, considered the principle of discrimination as sound. The Court also referred to the following decisions3:--

(1) Queen V. Basvanta, (1900) I.L.R. 25 Bombay 168,

175.

(2) Benoyendm Chandra V. Emperor, A.I.R. 1.936 Cal- cutta 73----I.L.R. 63, Calcutta 929. (Plague germs case, conspiracy)".

Case No. 86

State Vs. Basu Tanti A.I.R. 1957 Patna 462--I.L.R. 34 Patna 462 (Mishra and Sahai JJ.) (Judgment by Misra J.) This was a case of death by poisoning caused by the accused by administering oleander in liquor in high doze. Accused did this act for the beneﬁt of his friend (son-in- law of the deceased) for a petty domestic matter between the husband and wife. It was held that this was an ex- tremely wicked murder, and sentence of death could not be commuted.

Case No. 87

In re Murugian, A.I.R. 1957 Madras 541, 546, I.L.R. 1957 Madras 805.

(Somasundaram and Basheer Ahmed Sayeed JJ.) (Judgment by the latter).

In this case the accused murdered his wife (who was also his sister's daughter). The accused had suspected in- timacy between one P and his wife, and asked her to stop I. Dalip Singh. A.I.R. I953 S.C. 364, 368.

2. Rishideo, A.I.R. I955 S.C. 331.

3. See also discussion in Rattan Lal (1961) p. 7R4.

4. In Benayendra's case (Plague germs, the sentences were reduced to transportation because of delay and l"3C.'L"C the actual murderer had not b('(1'l arrested.

her relations. The wife said that she would not leave P as he had looked after her well, and then abused him and swore that she would continue her intimacy with P. The accused lost his self-control and murdered her. The Ses- sions Judge convicted him under section 302, Indian Penal Code, and sentenced him to imprisonment for life.

On appeal, the High Court regarded the case as falling within first exception of section 300 (Part I). It altered the conviction to one under Section 304, Part I and reduc- ed the sentence to ﬁve years. It expressed the view that the English decisions to the effect that mere words or a sudden confession of adultery would not constitute provo- cation, did not apply in India. In Western countries, vio- lation of marital ties was looked upon with a greater lati- tude than in India where adultery is an offence.

In a society where adultery is made punishable, if the lawfully wedded wife not merely resorts to adultery but also swears openly in the face of the husband that she would persist in such adultery. and also abuses the hus- band for remonstrating against such conduct, the court should take a more serious view of the matter in deciding whether such acts could not cause the husband to lose his self-control. (Case-law discussed).

Case No. 88

Sunder vs. State AIR. 1957 Allahabad 809 (Mukherji and Choudhary JJ.) (Judgment by Choudhary J .) The accused dealt 4 "Kanta" blows out of which 3 were dealt on the skull. In these circumstance, the mere fact that he was ol.d--'70 or 75 years of age----did not warrant commutation of death sentence. He was old enough to have known better and his life was not being nipped in the bud.

Case No. 89

Satyavir vs. State A.I.R. 1958 Allahabad 746.

D. N. Roy and R. K. Choudhary JJ.) (Judgment by Choudhary J .) Determination of the right measure of punishment is a matter of discretion and, therefore, within the province of the trial court. Hence interference by the appellate court is justiﬁed only on exceptional ground. One such ground may be that the trial court proceeded on wrong principle.

The assumption that the sentence of death was the nor- mal penalty for murder and life imprisonment the excep- tion, was based on the law embodied in section 367(5) of the Criminal Procedure Code before the Amendment of 1955 which came into force from 1st January, 1956. Since the Amendment, the question of proper sentence is to be declded not 011 aT1.V Such assumption but like any other 73 point for determination with the decision thereon and the reasons for the decision as provided in section 367(1). Ab- sence of cause of enmity between the accused and the dc- ceased is a circumstance justifying lesser punishment'.

I NoTE:-----After this case, the Allahabad High Court has considered the amendment of Section 367 fully in a later case----Jan Mohammad v. State, A.I.R. 1963 All. 501 (D.B.). A.P. Srivastava J. took the view, that the amendment did not change the Substantive rule (Dalip Sing/1 V. Szaze, A.I.R. I953 S.C. 364, 367), that for murder, death was the ordinary sentence. But K.B. Asthana J. doubted that. See Paragraphs 10-13 and 33-35.

Case No. 90

In re. Govmda Reddy A.I.R. 1958 Mysore 150--I.L.R. 1957 Mysore 177. (Hombegowda J. and Malimath J.) (Judgment by Hombegowda J.) This was a case of murder of 6 persons (belonging to an advocate's family) coupled with robbery. While con- ﬁrming the conviction and the sentence of death awarded to each of the 3 appellants under section 302 read with section 34 of the Indian Penal Code, the High Court re- pelled the contention that in a case of circumstantial evi- dence the extreme penalty should not be imposedl. The question of sentence was to be determined not with refer- ence to the volume or character of evidence but with re- ference to the fact whether there were any extenuating circumstances. The Supreme Court case of Vadi Velu V. State of Madras, A.I.R. 1957 Supreme Court 164 was cited to the effect that the nature of proof had nothing to do with the question of punishment. In the instant case, there were no extenuating circumstances. Appellants act- ed barbarously and killed 6 persons including 2 children who were fast asleep. They committed the murders for gain and were prepared for all eventualities and the mur- ders were dastardly. No sentence other than death could be appropriate. (The appellants had been convicted of certain other offences also not relevant for the present purpose.

Case No. 91

Dasrath Paswan vs. State of Bihar A.I.R. 1958 Patna 190.

Sahai and H. K. Choudhary JJ.) (Judgment by Choudhary J.) Accused was a student of class X. He failed at the examination successively for 3 years. Being very much upset at these failures he decided to end his life and in- formed his wife of his decision. The wife, aged 19, and I. Paragraph 41 in the A.I.R. at the page 193 right hand.

'4 -.1 a literate woman, asked him to ﬁrst kill her and then kill himself. In accordance with this suicide pact, the accused killed his wife and was arrested before he could kill him- self. lt was held that the case fell not under section 302 but under section 304, First Part, in View of the Fifth Exception to section 300. The wife gave her consent with- out fear of injury or misconception. A lenient View was taken and the accused was sentenced to 5 years' rigorous imprisonment.

Case No. 92

Hazara Singh V. The State A.I.R. 1958 Punjab 104-I.L.R. 1957 Punjab 1941 (Judgments by both) (Judgments were delivered by both) In this case, the accused laboured under a strong delu- sion that his wife was unfaithful. The brooding over the character of the wife had an eﬁect on his mental faculties, which effect was described by the medical witness as tak- ing the form of temporary insanity. But it was not insa- nity of the type mentioned in section 84, Indian Penal Code. The murder was committed at night by throwing nitric acid on all parts of the body of the wife. He was sentenced to death by the Sessions Judge after conviction under section 302, Indian Penal Code.

The High Court, while upholding the conviction, reduc~ ed the sentence to imprisonment for life, as the mental state of the accused showed that it was not a proper case for the extreme penalty. Tek Chand, J. pointed out that according to medical evidence, the accused was sensible in every respect but had a delusion about his wife's un-- faithfulness. This delusion did not mean that he was in- capable of knowing the nature of the act, etc. Assuming that his wife did have illicit relations, the law did not ex- cuse taking the life of a faithless wife. But the circum- stances of the case showed that the convict was unbalanc- ed, was not quite normal and was labouring under an un- shakable delusion. "A mental derangement which falls short of unsoundness of mind as understood in law, is a circumstance which must be taken into consideration in awarding the sentence/'.

Case No. 93

Peethambaran.

A.I.R. 1959 Kerala 165 (Koshi C.J. and M. S. Menon J.) (Judgment by Koshi C.J.)

(i) In this case. a deaf and dumb person (otherwise sane) convicted of murder was sentenced by the High 7 5 Court with the minimum sentence of life imprisonment. The case was disposed of by the High Court by virtue of the provisions in section 341 of the Code of Criminal Pro- cedure. (Case law elaborately discussed).

(i) A suggestion was also made as to why the State Government should not, under section 401 Criminal Procedure Code reduce the sentence.

(ii) Since life imprisonment was the minimum im- prisonment, it was awarded. But the Judgment shows that if a lighter sentence was allowed, the court would have awarded a still lighter sentence.

Case No.94 Thannoo v. The State A.I.R. 1959 Allahabad, 131, 132. (R. K. Chowdhry J.) In this case, the accused had been convicted of culpable homicide not amounting to murder under section 304, In- dian Penal Code and sentenced to nine years' rigorous im- prisonment by the Sessions Judge. Relations between the ac- cused and the deceased were strained, because of the fact that the accused wanted to build some building on the disputed land which the deceased did not like. There was an altercation with exchanges of abuses between the ap- pellant and the deceased, and then the appellant struck the deceased with a lathi on the head. This single blow caused the death of the deceased on the spot.

On appeal to the High Court, the High Court took the View that the act of the txppellant clearly fell within sec- tion 300 (thirdly), and the case was one of murder. An injury had been inﬂicted intentionally; and if the injury was such as was sufficient undoubtedly in the ordinary course of nature to cause death, because, it had caused de- pressed fracture of the skull and laceration of the brain and death was instantaneous (citing the Supreme Court case of Virsa Singh v. State of Punjab, AIR. 1958 S.C.

465) (not reported in the S.C.R.) The court pointed out that section 300, Indian Penal Code clause thirdly did not require that the intention must be related to the words "bodily injury is sufficient". In other words, the intent required need not be linked up with the seriousness of the injury.

The appeal was dismissed and conviction and the sen- tence maintained. The High Court observed that the con-

viction should have been under section 302, but apparently' did not alter the conviction.

In re Puttawwa, A.I.R. 1959 Mysore 116-I.L.R. 1958 Mysore 411.

(Sreenivasa Rau and A. Narayana Pai, JJ.) In this case the accused, a widow, was convicted of an offence under section 302, Indian Penal Code for having killed her newly born child, and was sentenced to impri- sonment for life. The Sessions Judge also recommended that in the circumstances of the case, the case was a ﬁt one for Government to reduce the sentence to one year's rigorous imprisonment.

In the appeal against the conviction to the High Court, the High Court set aside the conviction on the facts. The accused had lost her husband, married again and lost her second husband; while staying in her parental house, she came to have illicit intimacy with one A; she was sent out from her parent's house; then she came to a village and obtained shelter in the cattle shed of one T. who, on dis- covering that she was carrying, wanted her to leave the house. She, however, prevailed upon T to allow her to stay there. In the night she gave birth to a live child, §nd the wife of T assisted her during the conﬁnement.

Some time afterwards, the dead body of a child was found lying near the house of C. The prosecution case was, that that child was the child born to the accused and killed by her. (Post mortem examination of the discovered child showed that it had born alive and strangled to death). The accused denied having committed the offence. She admitted that she had given birth to a child, but stated that she became unconscious; that she did not know that the child was born alive, that she saw the child some hours after the delivery and it was lying dead, and T's wife took it away for burying.

The High Court, on the facts, held that it was not prov- ed that the child discovered and found dead near the house of C was the child born to the accused, and acquitted her. It agreed that even in the absence of discovery or produc- tion of. dead body, a conviction for murder could be sus- tained. But the evidence must establish that the parti- cular person was intentionally killed which was not proved here.

The High Court also decided that remissions of sentence did not mean acquittal, and the aggrieved party had every right to vindicate himself or herself.

Case No. 96 s Balbir Smgh v. The State A.l.R. 1959 Punjab, 332----l.L.R. 1959 Pun. 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 sus- pected 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 8.3') RM. the accused came (all the way from Delhi) and knocked at the door of the teachers house which was chained from within. The teacher advised M to conceal himself behind the outer door, so that M could escape while accused en- tered. (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 advanc- ed 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 hav- ing 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 furyl. 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".

Case No. 97

Jai Ram v. The State, _ A.I.R. 1959 Bombay 463-I.L.R. 1959 Bombay 1580-61 Bombay Law Reporter, 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 0;" 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 pursuade 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 com- mitted 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 diﬁicult 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 I. See paragraph 32 in the A.I.R. 79 Holmes' v. D.P.P. that mere words do not amount to pro- vocation cited)?

The High Court observed, that it would be extremely hazadrous to apply the First Exception to section 330 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 uncom- mon 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 vwsstern countries.

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

"He has already been awarded the lesser sentence, and t7'zerefore there is nothing more that can be done".

Case No. 98

U. Kantian v. The State, A.I.R. 1960, Kerala 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 reiected by the Sessions Court. The case was one of mur- der by the accused aged 45 of his mother aged 70. The only evidence of motive was that the accused used to quar- rel 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 I. Holmes v. D. RP. (1946) 1 All. England Reports, 1p_4._.I946 A.C.

488. 2A1so cited, In re Mu rgian, A.I.R. 1957 Madras 541, 80 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 instru- ments 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 fontrary 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

In re. Natesan.

A.I.R. 1960, Madras, 443.

(Ramaswami and Anantanarayanan JJ.) (Judgment and Anantanarayanan J.) In this case the accused, a young man of 22 was con- victed of the murder of a young girl. The girl aged 19 had been married 6 months ago to N. The accused bad t'£me_kief0r; the crime, attempted to take liberties h' ' '3 $1? ( he girl had informed her husband who owe-/er iegarded the matter' as trivial), Again, g,'n01~t1y before the Crime, when the glrl was drawing Water rﬁﬁm a well, the accused patted her on the cheek and attenipted to engage her in conversation in an improper manner_ This was reported to the husband, and the two families ceased t? be?" talking terms On the day of occurrence when girl was alone in her portion of the house, the accused Sfamedt he? Apparenfly the accused had made some kind E) ﬂovfertuihe and the girl resisted, whereupon the accused t?" °~9d '9 9 1nJ111'19S W_1'Eh 311 khlfe. Soon after the murder, Ciiceieeaccused stabbed himself in an attempt to commit Sui-

The High Court while conﬁrming the conviction, also rfelfused to reduce the sentence of death and pointed out tialt it was a very brutal and cruel murder of an innocent Elle Age of the accused (22) was urged as a ground for lesser sentence, _but youth, is not a circumstance1 that the Court can ta1_<e into account in awarding the penalty, That must be considered by the authorities of the State in exer. Clslng their prerogative of mercy. The attempt at suicide was also not regarded as an extenuating circumstance, of agle. There are however cases where sentence was reduced only on account S-.'(':---

(1) Mohan Lal V. Emperor A.I.'{. 1931 Lao. 177 (Afldisongl (old, "mm 51-) (A86 "not much more than 16".) 81

(ii) Prem V. Nara in State, A.I.R. I957, All. I77 (Mukerji 8: Choudhry JJ.) (Age "nearer 17 than 20").

._...

(iii) Naga Saw Htun v. Emperor, A.I.R. I937 Rang I21, I23, (Accused had just completed 16 years. Hence Section 15, Burma Preven- tion of Crime, (Young Offenders) Act, I930 did not apply. Still, the Court regarded the sentence of death as not suitable, not- withstanding that the murder was brutal (wound on neck with a "da"). (Motive was rivalry in love). Court observed that the legislation of I930 indicated that there was a considerable amount of public conscience against sentence of death (persons of immature age.)

(iv) Mohammed Din v. Crown (1937) I.L.R. 13 Lab. 658, 661, (Young C] and Monroe J) (Age----151/2 ye-ars---evidence of provocation also----sentence reduced.)--Court observed that youth of the appellants was "sufficiently strong reason".

(-0) Aladho v. Emperor.__A.I.R. 19,26 Nag. 461 (Findlay ].C. and Pri- deanx A J.C. (Age --- I4 years',----_l\/iurder of boy of 8 by strangling sentence reduced on account of age.

Case No. 100

Arun Kumar v. State.

A.I.R. 1962 Cal., 504, 509 (P. B. Mukerji and N. K. Sen JJ.) (Judgment by Mukerji J .) Capital Punishment--lesse7- 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 the last act of strangulation. While the conviction for murder was up- held, the sentence was altered to life imprisonment. The court followed the principle laid down by the Supreme Court in Daltp Singh's case} where the following observtx tions had been made:--

"This is a case in which no one has been convict- ed for his own act but is being held vicariously res- ponsible 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 judi- cial discretion to discriminate in the matter of punish- ment. It is an equally sound exercise of judicial dis- cretion 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 judi- cial mind can legitimately decide to award the lesser penalty in the case. . . ."

IDalz'p S1'ngIz:'.--6'zate of Punjab A.I.R. 1953, Supreme Court 364,368. 7--122 Law.

82 Case No. 101

Amalia Koleswara Rao, In re.

A.I.R. 1963. Andhra Pradesh 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 fcr capital offences does not hold good. If there are ag- gravating 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} I. Corrnare Mojiya v. State, A.I.R. I961 M.P. 10, where it was empha- sised that though (after the amendment of section 367 Criminal Procedure Co1e)t11ereis no £llI'CC[lO1 for recoding reasons for irnp3;'ng lesser sentence still Courts are no: absolved ofexzrcising their julicial co iscience as to whe- ther the extreme penalty should be awarded or only the life sentence.

I 'mTothesarneeEfect?s A"j9mv. Stare, (I)53)2 Cr.L.I. 23t,237. (O.-'.333 citing Ram Singh v. State, A.I.R. 1960 All. 748.) 83' APPENDIX III TABLE or ABOLITIONIST COUNTRIES on STATES, WITH DATE or ABQ (ARRANGED ALPHABETICALLY) Table of Abolittianiit sums a-b (Arranged alphabetically) Date slnava is of countries which have aboiished the death penalty (date in brackets). -

Argentina . . . .

.Australia (New South Wales) .

.»Queensland . . . .

. Austria . . . .

i Belgium ZBrazil . . . .

Colombia Costa Rica Denmark . . . . 1 'Dominican Republic Ecuador .

1Finland ~German Fed. Rep.

. .

.11-Ionduras . .

Joeland . . . . .

' India-

Travanoore .

Hsrael .

(a) The table is taken fromiloyee, to Life, (1962), pggea_242 29:1 243,-

b I -th fth D () n_ecaseso e m ' Portugal d Rumarr , law crimgnof murderlaid

-.:.-1-.-

i 9

1. 3 inwis doubtful, 1922 (I922) I955 I922 (I913)

- - 1950 . . disoontinued(last

- I863) I946 . . 1910 1880 19300892) 1924 . . I897 . ' I949 (I926) . I949 I930 . ~. 1894 . I944 . . estoxed ""sS§.. ..u........- "'1'-',..'11"

I95! L but so at 'I the the de facto abolition pteuils.

ublic, Finland, Icelnnd, Llxemﬁourg, Gonna oflast execution civil execution,

-

Code) 1 ) lftaty .

Luxembourg Mexico .

Nepal .

Nether lands Norway Panama' Peru .

Portugal Puerto Rico .

Rumania Sweden Switzerland I}Tug"3Y U.S.A..

Alaska .

Delaware Hawaii .

Maine , Michigan Minnesota N. Dakota 0 Rhode Island Wisconsin U.S.S.R. Venezuela 84 1948 discontinued (I822) 1928 (Partly neintroduced' in"- 1943) I931 I870 (I860) I9o5(I876) I915 19oo (reintroduced for poncicali crimes, I949) I867 I929 1865 (last civil I893) execution;

1921 (1910) 1942 (I939) I877 I957 I958 1957 1887 1347 1911 I915 I852 I853 I947 (reintroduced for politicaif crimes, I951; restored in 1954; _ qualiﬁed abolition, 1958;.

extension to certain civil.

crimes, I961).

I863 85 'APPENDIX IV . 'COUN'I'RYWISE STATEMENT or ABOLITION OR RETENTION I-3 (ARRANGED ALPHABETICALLY) Explanation of Symbols

3. I . . Abolitionist de jure A F . . Abolitionist de facto A C . . Almost completely abolitionist R . . Retentionist 'Norizs :----(1) Year in brackets to show the year of abolition (or ﬁnal.' abolition after re-introduction) in the country concerned.

(2) Figures 8, IO, II or 12 in brackets against each'!'coumry indicate the re- levant paragraph in the U.N Publication' where the name of thc country is mentioned.

Afghanistan (8) . . . . . . . . . R Arab Republic . . . . . . . . . See 'UAR.

Argentina (1922) (I0) . . , . . . . , A I Australia (except two States) (8) . . . . . . R Australia (Queensland) (Io) , . . , . , _ A 1 Australia (New South Wales) (12) , . . . . . A C Austria (I945) - . . . . . . . . A J gtggpt in the event of proclamation of a state of emergercy Belgium (I867)gII) .. . . . . . . . A F ;'Brazi1 (1889) (to) . . . . . . . . . A I 'Burma (3) . . . . . . . . . . R Cambodia (8) . . . .. . . . . . R Canada (3) . . . . . . . . . . R Central African Republic (8) . .. . . . . . R Ceylon (8) . . . . . . . . . . R Chile (8) . . . . . . . . . . R 'China (Taiwan) (8) . . . . . . . . R Colombia (1910) (10) . . . . . . . . A J Costa Rica (I882) (10) . . . . . . . . A J Cuba (8) . . . . . . .. . . . R 1'. Prepared on the basis of information given in U.N. Publication "Capital Punish. anent" (1962), pages 7 and 8, paragraphs 8-12.

2.'A table of Abolitionist States is given in Joyce. Right to life, 1962, page 24.;

3. U.N. Publication "Capital Punishment" (1962), pages 7 and 8.

Czechoslovakia (8). . . . . . . . . R Dahomey (8) . . . . . . . . . R Denmark (1930) (I0) . . . . . . . . A I Dominican Republic (I924) (10) . . . . . . A I Ecuador (1897) (I0) . . . . . . . . A J El Salvador (8) . . . . . . . . . R Federal Republic of Germany . . . . . . See "Gernm}"' "

Finland (I949)(1o) . . . . . . . . A J France (8) . . . . . . . . . . R Gambia (8) . . . . . . . . . . R Germany (Federal Republic) (1949) (I0) . . . . . A J Ghana (8) . . . . . . . . . . R Gibraltar (8) . . . . . . . . . . R Greece (8) . . . . . . . . . . R Greenland (1954) (10) . . . . . . . . A J Guatemala (8) . . . . . . . . . R Hong Kong (8) . . . . . . . . R Iceland (1940) (re) . . . . . . . A I India (8) . . . . . . . . . R Indonesia (8) . . . . . . . . . R Iran (8) . . . . . . . . . . R Iraq (8) . . . . . . . R Ireland (8) . . ' . . . . . . . . R Italy (1944) (I0) . . A F' Ivory Coast (8) . . R }apan (8) . . ' . . . . . . . . R Laos (8) . . . . . . . . . . R Lebanon (8) . . ' . . . . . . . . R Liberia (8) . . ° . . . . . . . . R Liechtenstein (1798) (Ix) A F Luxembourg (II) . A F' Maiaya (8) . . . . R Mauritius (8) . . . . . . R Mexico (four States out of 29 z'.e. the States of Morclos, Oaxaca, San Luis Potosi and Tabasco) (8) . . . . .

Mexico (25 States out of 29 and the federal territory) Constitu-

tion, 1931 (10) .

Morocco (8) . . . . . . . .

Netherlands (r87o)(1o) .

Netherlands Antilles (1957) (10) Netherlands New Guinea (8) .

New Zealand (retains for treason only. See Crimes Act, 1961, sections 74 and 172) . . . .

Nicaragua (r2) Nigeria (8) . . . . . . . .

Northern Rhodesia (8) Norway (I905) (10) Nyasaland (8) Pakistan (8) Philippines (8) Poland (8) Portugal (1867) (10) . . . . . .

San Marine (1865) (10) .

Senegal (8) Seychelles (8) . . . . . . .

Somalia (Northern) (8) Somalia (Central and southern) (8) .

South Africa (8) Spain (8) Sudan (8) . . . . . . .' .

Surinam (8) . . . . . . .

Sweden (1921) (10) . . . . . .

Switzerland (1937) (10) . . . .

Tanganyika (8) . . . . . .

Thailand (8) .

Togo (8) . . . . . . . .

Turkey (8) . . . . .

United Arab Republic (8) .

United Kingdom (8) . . . . . , (for capital murder) A A > O w7=7°73FUFU>>7J7J?U?~'1')UW7U$U>>7~'17U?UW3>7U7U I I O '--t &1&1 5th-c 88 United States of America--Alaska (I957), Delware (1958), Ha-

(wI'§i;'3)(8g)7), Maine (1887), Minnesota (I.9II),. Wisconsin A I United States of America--Michigan (1847), North Dakota (1915), Rhode Island (1852) (I2) . . . . . . . A C North Dakota and Rhode Island provide death penalty for mur--

der committed by a lifer in prison.' Michigan has kept it for treason.)'--* United States of America (in principle, 42 states out of (580), the District of . Columbia . and . the . federal system) R Union of Soviet Socialist Republics (8) R Uruguay (I907) (:0) Al Vatican City State (11) . A F Venezuela (1863) (10) A J Vietnam (8) . . . R Western Paciﬁc Islands (8) R Yugoslavia (8) R Zanzibar (8) . . R APPENDIX V CAPITAL OFFENCES IN VARIOUS COUNTRIES'-' (OFFENCEWISE) Offences against Life or Body I. Murder . . . . . . Afghanistan, Western Paciﬁc Islands, Be l-» giurn (b), Burma, Canada, (if capital murder) Ceylon, Chile, China (Taiwan), Ivory Coast, Dahomey, Spain, United States of America (c), Federation of Malaya, France, Gambia, Ghana, Gib-

raltar, Greece, Guatemala, Hong Kong, Mauritius, India, Iraq, Iran, Japan, Laos, Lebanon, Liberia, Luxembourg (b) Mo- rocco, Nicaragua (J), Nigeria, Nether- lands, New Guinea, Nyasaland, Pakistan, Philippines, Poland, United Arab Re- public, Central Afircan Republic, Republic of Viet-Nam, Republic of South Africa, Northern Rhodesia, United Kingdom' (if capital murder), El Salvador, Seychelles Somalia (Northern), Sudan, Surinam (c) Tanganyika, Czechoslovakia, Thailand, Togo, Turkey, U.S.S.R. (e), Yugoslavaia, Zanzibar.

I. See Joyce, Right to Life, page 167.

2. Joyce, Right to Life, page 159.

3. Based mainly on U.N. Publication on Capital Punishment (1962), Table atthe

4. Countries are listed in French alphabetical order.

5. Position regarding U.K. is stated as in November, 1964.

1.» - " C _ , _ _ Federation of Malaya, Gambia, Ghana, "7" wilful hommd India, Nigeria, Netherlands, New Guinea, Nyasaland, Pakistan, Phlllippines, Poland, Republic of South Africa, Northern Rho- desia, Seychelles, Somalia (Northern), Sudan, Tanganyika, Thailand, Zanzibar.

-3. Poisoning . . . . . Belgium (b), Ivory Coast, Dahomey, France, Guatemala, Mauritius, Iraq, Japan, Laos, Luxembougrg (b), Morocco, United Arab Republic, Central Afrian Republic, Re- public of Viet--Nam, Togo.

4. Patricide; Infanticide . . . Belgium (17), Chile, China (Taiwan), Ivory Coast, Dahemey, Spain, France, Guate- mala, Mauritius, Iraq, Japan Laos, Leba- non, Luxembourg (b), Morocco, Nicara- gua (d), Philippines, El Salvador, Thai- land, Togo, Turkey.

5. Homicide accompanied by another Westcrn Paciﬁc Islands, Belgium ((7), Burma, crime (robbery, highway robbery, Canada (if _falling under capital murder), piracy). Chile, China (Taiwan), Ivory Coast, Dahomey, France, Gibraltar, Gautemala, Hong Kong, India, Iraq, Japan, Leba- non, Luxembourg (b) Nicaragua (d), Nyasaland, Pakistan, Philippines, United Arab Republic, Central African Republic, Republic of Viet-Nam, United Kingdom (if capital murder), El Salvador, Seycha1e- les, Sudan, Surinam (c), Thailand, Togo, Turkey.

\6. Killing of a policeman or of an official Burma, Ivory Coast, Dahomey, Gibraltar, on duty. India, Iraq, Laos, Pakistan, United Kingdom, Somalia (Northern), Sudan, Thai- land.

:1. Kidnapping of a minor.--Simple Chile, Dahomey, United States of America Followed by death. (c) Federation of Malaya, Philippines, Ivory Coast, France, Morocco, Central African Republic, Republic of Viet-Nam, ogo.

*8. Aggravated assault--causing death of Ivory Coast, Dahomey, France, Morocco, 3 child. Central African Republic, Republic of Viet-Nam, Togo.

'9. Wrongful detention---with torture . China (Taiwan), Dahomey, France, Guate- mala, Iran, Laos, _Ph1l1ppmes, Czecho- slovakia, Togo.

Perjury ,Io. Perjury (false-witness) or unlawful Ceylon, Ivory Coast, Dahomey, France, arrest causing sentence of death and India, Iraq, Luxembourg (Iv), Norocco, execution. United Arab Republic, Somalia (Northern), Somalia (Central and Southern), Sudan, Togo, Turkey.

.11. Recidivism after sentence to hard la- Chile, Ivory Coast, Dahomey, Iraq, Moracco, bour for life ; commission of more Somlia (Central and Southern), Togo, than one offence punishable with hard Turkey, U.S.S.R. (c). labour for life.

'12. Castration followed by death . Ivory Coast, Dahomey, Mauritius, Laos, Morocco, Central African Republic, Togo.

13.

14.

15.

16. I7.

18. I9.

20.

21.

22.

23. Rape.--Simple Followed by death 90 China (Taiwan), United!States of America, Nayasaland, Republic of South Africa, Northern Rhodesia.

Japan, Philippines, Turkey.

Suicide Aiding in the suicide of a child or of a Ceylon, India, Somalia (Northern), Sudan. person of unsound mind or under the inﬂuence of drink.

Arson, wilful inundation, sabotage, Belgium (b), Chile, China (Taiwan), Arson dynamiting causing death.

See also Sabotage.

Ivory Coast, Dahomey, United States of Ame- rica (c), France, Gibraltar, Guatemala, Mauritius, Iraq, Iran, Japan, Morocco, United Arab Republic, Central African Republic, United Kingdom, Somalia (Northern), Togo, Turkey, Yugoslavia.

Narcotics Trafﬁc in narcotics (aggravated) China (Taiwan), United States of America

(c), Iran, Turkey.

Crimes against Property Robbery (armed burglary) Piracy (aggravated) . . .

Ivory Coast, Dahomey, United States of America (0), France, Greece, Nether lands, New Guinea, Republic of Sout Africa, Togo.

Western Paciﬁc Islands, Canada, Chile, Spain, Gibraltar, Guatemala, Hong Kong, Nyasaland, Philippines, Seychelles.

Aggravated hoarding, unlawful raising China (Taiwan), Spain, Republic of Viet-

of prices, misappropriation of public funds.

Economic Nam, Yugoslavia.

Crime Counterfeiting currency; currency spe- Poland, U.S.S.R. (e).

culation.

Grave Crimes against socialised pro-

perty.

Poland, U.S.S.R. (e), Yugoslavia.

Crimes against the Security of the State Attempt on the life of the sovereign or Australia (a), Belgium (b), Spain, Greece, the Head of State.

Treason Guatemala, Indonesia, Iran, Laos, Luxem- bourg (b), Morocco, Netherlands, New' Guinea, New Zealand, Surinam (c), Thailand, Turkey, Yugoslavia.

Netherlands, Antilies, Western Paciﬁc Is- lands, Australia (a), Belgium (b), Burma, Canada, Ceylon, Chile, China (Taiwan), Ivory Coast, Dahomey, Spain, United:

States of America, Federation of Malaya France, Gambia, Ghana, Gibraltar, Greece, Guatemala, Hong Kong, Mauri--- tius, India, Indonesia, Iraq, Iran, Japan, Lebanon, Liberia, Luxembourg (b), M" « rocco, Nigeria, New Zealand, Pakistan, 24-

25.

26.

27.

28.

29. 91

Philippines, Poland, United Arab Re-V public, Central African Republic, R6- public of Viet-Nam, Republic of Stguth Africa, Northern Rhodesia, United King_-- dom, El Salvador, Scychelles._S0ma11a (Central and Southern), Tanganyika: CZC' choslovakia, Thailand, Togo, Turkey» U.S.S.R. (e), Yugoslavia, Zanzibar. China (Taiwan), Dahomey, Spain, United States of America (9), France, Greece, Iran, Luxembourg (17); MOFOCCO: P013{7§lv United Arab Republic, Central Atri- can Republic, Republic of Viet-Nam, El Salvador, Somalia (Central 8: South- ern), Czechoslavokia, Togo, Turkey.- U.S.S.R. (e), Yugoslavia.

Netherlards, Amilics, W'cstein Pzcifc _Is- lands, Australia (a), Belgium (17). China (Taiwan), Indonesia, Iraq, Iran, Japan, Lebanon, Luxembourg ([2), New Zea- land, Pakistan, Philippines, Central Afri- can Republic, United Kingdom, Surinam

(c), Turkey, Yugoslavia.

Australia (a), China (Taiwan), Spain, France, Greece, Iraq, Japan, Luxem- bourg (b), Poland, Northern Rhodesia, Somalia (Central and Southern), Surinam

(c), Yugoslavia, Zanzibar.

Spying : disclosure of naticnal defence secrets.

Assisting the enemy (collaboraticn) Crimes against the ccuntry's integrity and independence.

Mutiny followed by mutiny. ritius, India, Indonesia, Iraq, Iran, Pa- kistan, United Kingdom, Somalia (North- ern), Sudan, Surinam (c).

Australia (a), Burma, China (Taiwan), Spain, France, Ghana, Guatemala,{Mau- ritius, India, Iraq, Iran, Japan, Laos, Morocco, New Zealand, Pakistan, Poland, Central African Republic, Somalia (North- ern), Somalia (Central and Southern), Sudan, Czechoslovakia, Turkey, U.S. S.R. (e), Yugoslavia.

Sabotage, etc. Looting, Massacre; sabotage, devasta- Westein Paciﬁc Islands, China (Taiwan), tion; diversionism (e). Spain, France, Greece, Iraq, Laos, Le-

See also <7/Xrson". banon, Poland, Central African Republic, Somalia (Central and Southern), Czeclio-- slovakia, U.S.S.R. (e), Yugoslavia.

Armed rebellion; insurrection; con- spiracy against the State.

N013 :--The indication "A. C." means that the crime is punishable with death only if committed with aggravating circumstances.

(a) For Australia and the United States, only the provisions of federal law are- taken into account.

Belgium and Luxembourg have abolished the death penalty de facto, but the penalty continues to appear in their penal codes.

The indication (c) means that list of capital crimes is not been supplied at all.

In Nicaragua, the death penalty is applicable only in the very exceptional. cases of the most odious crimes committed with aggravating circumstancees The term "diversionism" has been adopted by Soviet authors to describe a counter-revolutionary act of sabotage which in their eyes constitutes a "diversionist manoeuvre", precisely in that it seriously hampers efforts to build socialism (transIator's note under article 68 of the Penal Code of the Russian Soviet Federative Socialist Republic in Reforms Penale Sovieties published by the Centre francais dc Droit compre Paris 1962).

(b)

(c)

(d)

(e) incomplete or has incitement to mutiny, if Netherlards Antilies, Ceylon, Ghana, Mau-V 92 APPENDIX VI 'PosIT1oN REGARDING APPEALS FROM DEATH SENTENCE5 IN CERTAIN COUNTRIES

(i) Australia.

'(ii) U.S.A.

(iii) England.

(iv) New Zealand.

(V) Canada.

APPEALS .AUSTRALIAN CAPITAL TERRITORY AND NORTHERN TERRITORY1

(i) The same position obtains with regard to sentences of death as obtains with regard to other sentences: there is no appeal as of right. A sentence of death can be pro- nounced only by the Supreme Court of the respective 'Territories, and the rights of appeal are set out in section '52 of the Australian Capital Territory Supreme Court Act, 1933----1959, and section 47 of the Northern Territory 'Supreme Court Act, 1961, respectively. References to the .High Court in those sections are to the High Court of Aus- tralia.

:(../ii) The High Court of Australia hears the ﬁrst appeal.

(iii) There is an appeal to the Privy Council, by spe-

-cial leave--under the Constitution, section 74. As to the ;_grounds of appeal, see Bentwich, "Privy Council Prac- tice" (3rd Edn.) p. 137 et seq.

NEW SOUTH WALES1 (Australia) By virtue of the provisions of the Criminal Appeal Act, 1912, as amended, a person convicted on indictment may appeal, to the Court of Criminal Appeal, which is constituted by three or more Judges of the Supreme Court of New South Wales. The appeal may bez-

(a) against his conviction on any ground which involves a question of law alone; and

(b) with the leave of the court, or upon the certi- ﬁcate of the Judge of the Court of trial that it is a ﬁt case for appeal, against his conviction on any ground of appeal which involves a question of fact alone or question of mixed law and fact, or any other ground which appears to the Court to be a sufﬁcient ground of appeal; and ' 1. Based on information obtained through the Australian High Commis- ition, New Delhi Second Appeal 93

The Commonwealth Judiciary Act, 1903, as amended, provides a right of appeal in criminal matters to the High Court of Australia. Such an appeal from the Court of Criminal Appeal is, in general, by special leave, which is made on notice to the court, where an indictable offence is involved.

Under Orders-in-Council of 2nd April, 1909, and 2nd May, 1925, appeals lie to the Privy Council from the High Court in criminal matters, only by special leave of the Privy Council.

SOUTH AUSTRALIA1 Section 11 of the Criminal Law Consolidation Act pro- vides that any person who is convicted of murder shall suffer death as a felon. On conviction for murder pro- nouncement of sentence of death is automatic. It is the only sentence which can by law be imposed. Whether the sentence is carried into effect or commuted is a mat- ter for the Governor of the State, with the advice and. consent of the Executive Council, to decide.

There is no appeal to any Court against sentence of"

death as such, although of course an appeal against convic- tion lies to the Full Court of the Supreme Court, sitting as a Court of Criminal Appeal.

An appeal on matters of law lies as of right; an appeal' on a matter of fact or mixed fact and law lies only with the leave of the Full Court.

Further appeals can be made to the High Court of Aus- tralia and to the Privy Council, but only with the leave of those tribunals.

TASMANIA1 (Australia) Under the provisions of the Tasmanian Criminal Code» Act, 1924, sentence of death is restricted to two crimes viz., Treason (Section 56) and Murder (Section 158) and in both cases sentence of death is mandatory.

Regarding appeals, see section 401 of the Criminal Code Act, 1924. Section 401(1) states "A person convicted before a Court of trial may appeal to the Court of Crimi--- nal Appeal:--

(a) . . . . . . . . . . . . . . ..

(b) . . . . . . . . . . . . . . ..

1. Based on information obtained through the Australian High-.

Commission, New Delhi.

(c) by leave of the Court of Criminal Appeag against the sentence passed on his conviction unless the sentence is one ﬁxed by law."

As the sentence of death is one which is ﬁxed by law, the position is that a person so sentenced has no right of appeal against the sentence as such. But an appeal by a person under sentence of death against his conviction is regulated by numerous statutory provisions.

VICTORIA1 (Australia) (1) Death sentence is not appealable as such.

(ii) The Full Court of the Supreme Court of Victoria hears the first appeal.

(iii) Appeals from (ii) may be made to the High Court of Australia or to the Privy Council, or in succession to the High Court of Australia and then to the Privy Coun- cil.

Point (1) may be elaborated thus: There is an appeal as of right against conviction on any ground of appeal which involves a question of law alone, otherwise a cer- tiﬁcate of leave is required. See section 567 of the Crimes Act, 1958 (cited below):

In elaboration of Point (iii), special leave of the High Court is necessary on appeals to the High Court. The grounds are not prescribed by statute, so it is a matter of discretion for the High Court. As to appeals to the Privy Council, the appeal is only by leave. Such leave may be granted by the Court giving the judgment appealed from or by the Privy Council. The grounds on which leave will be given are not prescribed by statute, but depend (.-n the practice of the Court or the Privy 'Council, as the case may be.

Section 567 of the Crimes Act, 1958 (No. 6231), reads ;as follows:--

"567. A person convicted on indictment may appeal under this Part to the Full Court-

(a) against his conviction on any ground of appeal which involves a question of law alone:

Provided that the Full Court in any such case may, if it thinks ﬁt, decide that the procedure with relation to Crown cases reserved under Part III of this Act should be followed, and re- quire a case to be stated accordingly under that Part in the same manner as if a question of law I.Based on information obtained through the Australian High Com- rmission, New Delhi.

had been reserved and thereupon the provisions of the said Part shall with the necessary modifi- cations apply accordingly;

(b) upon the certificate of the judge of the Supreme Court or chairman of general sessions before whom he was tried, that it is a fit case for appeal against his conviction on any ground of appeal which involves a question of mixed law and fact;

(c) with the leave of the Full Court, upon avg' such ground as is mentioned in paragraph

(b). or any other ground which appears to the Full Court to be a sufﬁcient ground of appeal;

and

(d) with the leave of the Full Court, against the sentence passed on his conviction, unless the sentence is one fixed by law, WESTERN AUSTRALIA1

(i) Section 688 of the Criminal Code provides in para- graph (c) "A person convicted on indictment may appeal to the Court l . . . _ . . . .. (a) with the leave of the Court against the sentence passed on his conviction." The right in the case of sentence of death is not of great weight, as the sentence of death is mandatory and cannot be varied by a Court. Therefore, if a man is convicted of wilful murder or treason, the sentence of death must be passed, and unless commuted by the Executive Council, must be carried out.

(ii) The Full Court of the Supreme Court of Western Australia hears the ﬁrst appeal.

(iii) There are no further appeals possible, although where the High Court grants special leave to appeal and substitutes a conviction for a lesser offence if it allows the appeal, then it substitutes the appropriate penalty, which in all cases (except wilful murder and treason) does not involve sentence of death.

QUEENSLAND'

3. The death penalty was abolished in Queensland by 'the Criminal Code Amendment Act of 1922, which was assented to on July 31, 1922.

U.S.A.3 The information is limited to pertinent Federal statu- tory procedure, including the availability of review in a 1-2. Based on information obtained through the Australian High Commis-

' sion, New Delhi.

3, Based on information supplied by the Department of Iustice, U.S.A- through the American Embassy, New Delhi.

Federal Court of a death sentence imposed in a State Court.

(i) Whether sentences of death are appealable as of right to the highest appellate court?

Sentences of death imposed in a Federal District Court are not appealable as of right to the highest appellate court, the Supreme Court of the United States. Review of a death sentence in the Supreme Court is limited to- those cases wherein the Supreme Court in the exercise off its discretion grants certiorart from the intermediate Federal Court, the Court of Appealsl. Former section 681 of Title 18 allowed an accused the right to direct appeal from a Federal District Court to the Supreme Court in cases involving conviction of a capital offence. This sec- tion was repealed by those sections of Title 28 which com-- pletely reorganised distribution of appellate jurisdiction between the Supreme Court and the Circuit Courts of' Appeals? Now a defendant sentenced to death in a Federal District Court must appeal to a Circuit Court of' Appeals.

(ii) which court bears the first appeal?

As indicated, the ﬁrst appeal in a case where the death- sentence has been imposed in a Federal District Court would be to a Circuit Court of Appeals. The Courts of Appeals have jurisdiction of appeals from all ﬁnal deci- sionsi' of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands'. A defendant is entitled to a full teview of his cases in a Circuit Court of Appeals. The Court reorganization referred to in (i), supra which eli- minated direct appeal to the Supreme Court in capital cases infringed no substantial right of a defendant sen- tenced to death to a full review of his case, for he may take an appeal to a Circuit Court of Appeals as a matter of right. It Was simply a suitation where the channel of appeal was changed.

(iii) Are there any further appeal or appeals. If so, to which court and on what grounds?

A defendant sentenced to death in a Federal court may attempt to have his case further reviewed in the Supreme Court of the United States by writ of certiorari. Cases in the Courts of Appeals may be reviewed by the Supreme I. See discussion (iii) infra.

2. See United State v. Stephen, 49 F. Supp. 897 (D. Mich., 1943), appeal' denied, 319 U.S. 423 (1943).

3. Final decision is the sentence. Berman v. United States, 302 U.S. 211; (1937); Northern v. United States, 300 F. 2d 431 (CA. 6, 1962).

4. 28 U.S.C. 1291.

Supreme Court rules.

Court by writ of certiorari granted upon the petition of any party to any criminal case, before or after rendition of judgment or decree'. Supreme Court Rule 19 Sets forth the guidelines for the Court to follow in deciding whether to review a case on certiorari. They are as follows:

19 CONSIDERATIONS GOVERNING REVIEW ON CERTIORARI

1. A review on writ of certiorarér is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons there-

for. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:----

"(a) Where a state court has decided a Federal question of substance not therefore determined by this court, or has decided it in a way probably not in ac-

cord with applicable decisions of this court.

(b) Where a court of appeals has rendered a deci- sion in conflict with the decision of another court of appeals on the same matter; or has decided an im- portant state or territorial question in a way in con- flict with applicable state or territorial law; or has decided an important question of Federal law which has not been, but should be, settled by this court, or has decided a Federal question in a way in conflict with applicable decision of this court; or has so far de- parted from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court's power of supervision.

2. The same general considerations outlined above will control in respect of petitions for writs of certiorari to re- view judgments of the court of claims, of the court of Customs and Patent Appeals, or of any other court whose determinations are by law reviewable on writ of certio- rart"

Review by a Federal Court for a prisoner in Federal custody may also be obtained under 28 U.S.C. 2255 to the extent that relief is available under this section. It pro- vides that;

"A prisoner in custody under sentence of a court estab- lished by Act of Congress claiming the right to be re- leased upon the ground that the sentence was lIl1p'",S€Ci in Violation of the Constitution or laws of the United States,

1. 28 U.S.C. 1254 8-122 Law.

or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maxi- mum authorised by law, or is otherwise subject to colla- teral attack, may move the court which imposed "the sen- tence to vacate, set aside or correct the sentence . . . . . . .."

Thus, a murder indictment which charged that the crime had been Committed on a Washington reservation but failed to allege that the defendant or the victim was an Indian, stated no basis for Federal jurisdiction, and even though the defendant had pleaded guilty,' he could there- after collaterally attack the charge in a s. 2255 proceed- ingl.

This section, however, is not a substitute for appeal and cannot be resorted to by a petitioner to review the suﬁ'i- ciency of the evidence.

Final judgments or decrees rendered by the highest court of a state in which a decision could be had may be reviewed by the Supreme Court of the United States? A defendant who has been sentenced under a state statute which he claims is repugnant to the United States Consti- tution or who claims deprivation of other Constitutional rights may petition to have his case reviewed by the Su- preme Court. Once again, the standards of Supreme Court Rule 1.9 apply. A recent state case illustrates the attitude of some members of this Court toward the granting of certiorari in death cases. The case involved the imposi- tion of the death penalty on a convicted rapist who con- cededly had neither taken nor endangered human life. Al- though certiorart was denied, Mr. Justice Goldberg, with whom Mr. Justice Doublas and Mr. Justice Brennan join- ed, dissented. He said,-

"I would grant certiorari in this case and in Snyder v. Cunningham 169 Misc. to consider whether the Eighth and Fourteenth Amendments to the United States Consti- tution permit the imposition of the death penalty on a convicted rapist who has neither taken nor endangered human life. The following question, inter alia, seem rele- vant and worthy of argument and consideration---

"(1) In light of the trend both in this country and throughout the world against punishing rape by death.

does the imposition of the death penalty by those states which retain it for rape violate 'evolving standards of decency that mark the progress of [our] maturing society', or 'standards of decency more or less universally accepted'?

I. See Hildebrand v. United States, 261 F. 2nd 354, (C.A. 9, 1958).

2. 28 U.S.C. 1257.

an life to protect a value other than human life consistent with the constitu- tional proscription against 'punishment which by their excessive . . . . ..severity are greatly dispropor- tioned to the offence charged?

(3) Can the permissible aims of punishment (9-9-, deterrence, isolation, rehabilitation) be achieved as effectively by punishing rape less severely than by death (e_g_, by life imprisonment), if so, does . the imposition of the death penalty for rape Corlstltllte 'unnecesary cruelty'?

Finally, a Federal court has the power to grant writs of habeas corpus for the purpose of inquiring into cause of restraint of liberty of anyone in custody under author- ity of the state in violation of the Federal Constitution', provided the applicant has exhausted all remedies avail- able in the courts of the state and in the Supreme Court of the United States by appeal or writ of certiorctrtz. Thus, a defendant convicted of murder and sentenced to death in a state court who claimed that his conviction violation the Fourteenth. Amendment because of the admission in evidence of a confession obtained while he was under the inﬂuence of drugs and who had exhausted all state reme- dies was held to be entitled to a plenary evidentiary hear- ing in the Federal court on his habeas corpus application in View of the fact that he did not get a full and fair hear- ing on this question in the state courts3.

(2) Is the taking of hum ' ENGLAND

1. Appeals to the Court of Criminal Appeal--Under sec- tion 3 of the Criminal Appeal Act, 1907, (7 Edw. 7 c. 73), a person convicted on indictment may appeal under that Act to the Court of Criminal Appeal. The section is quoted be- ow:--

"3. A person convicted on indictment may appeal under this Act to the Court of Criminal Appeal--

(a) against his conviction on any ground of appeal which involves a question of law alone; and

(b) with the leave of the Court of Criminal Appeal or upon the certificate of the judge who tried him that it is a ﬁt case for appeal against his conviction on any ground of appeal which involves a question of fact alone, or a question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal; and I. 28 U.S.C. 2241; I ' _. D d U.S. _

2. 283U.S.C. 2254. mm V 0" ' 359 394 (1959) _3. Townsend v. Sain, 372 U.S. 293 (1962).

tion, unless the sentence is one ﬁxed by law."

2. Under section 2(4) of the Sentence of Death (Ex--A pectant Mothers) Act, 1931 (21 and 22 Geo. 5, ch. 24) read with section 2(1), where a woman convicted of a capital' oﬂence alleges that she is pregnant or, the convicting court thinks it proper to make an inquiry, the question of pregnancy shall be determined by a jury before the sentence is passed; and if the jury ﬁnds that she is not pregnant, she may appeal under the 1907 Act to the Court of Criminal Appeal. That Court, if satisﬁed that for any reason the ﬁnding should be set aside, shall quash the sentence of imprisonment for life.

3. Regarding sentences on capital murder, there are certain special provisions in section 9(1) and First Sche- dule, paragraph 1(2) of the Homicide Act, 1957 (5 & 6 Eliz. 2 c. 11) which are not of much importance for our purpose.

4. House of Lords.---Under section 1 of the Adminis- tration of Justice Act, 1960 (8 & 9 Eliz. 2 c. 65), an appeal shall lie from the Court of Criminal Appeal to the House of Lords in certain cases. The section is quoted below:--

"S. (1)----Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the ins- tance of the defendant or the prosecutor,-

(a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter;

(b) from any decision of the court of Crimi-

nal Appeal on an appeal to that court."

(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certiﬁed by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House."

(Section 3 of that Act makes special provisions to the effect that an application for leave to appeal in a case in-

volving sentence of death as well as an appeal for which- leave is granted on such application shall be heard and determined with as much expedition as practicable, and provides that the sentence shall not be executed until ex--

piration of the time allowed for such application, etc.).

No further .~App'«:al.

'Right of

-appeal of person atonvicted.

101

NEW ZEALAND1 A1. Treason is now the only crime which is punishable by the death penalty in New Zealand (section 73 of the Crimes Act, 1961). Appeal against conviction for (mler alia) treason is governed by section 383 of the Crimes Act. and lies to the Court of Appeal. On any ground of appeal which involves a question of law alone, the appeal is as of right. On any ground which involves a question of fact or of mixed fact and law, the leave of the Court of Appeal or the certiﬁcate of the trial or sentencing judge that it is a "fit case for appeal" is required,

2. There is no longer any provision in the Crimes Act or in any other New Zealand legislation providing for fur- ther appeals from the Court of Appeal. There is stilli how- ever, a right of appeal to the Privy Council by virtue of the Royal prerogative. Halsbury's Laws of England 3rd Edn., Vol. V, pp. 682 ff gives an adequate account of the New Zealand position. Two points should however be noted. In the first place. New Zealand Courts no longer have jurisdiction in any case from the Independent State of Western Samoa. In the second place, the Court of Appeal in Woolworths N. Z. Ltd., V. Wynne (1952) N. Z. L. R. 496 held that, it could grant leave to appeal to the Privy Councli in certain circumstances (see Halsbury op. cit. p, 685) but the legislation on which that decision was based is now repealed. The result is, therefore, that spe- cial leave to appeal must be obtained from the Privy Council. and this is granted only in exceptional circums- tances where " . . . . . . .. by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise substantial and grave injus- tice has been done." Nadan v. The King. (1926) A. C. 482.

CANADA The position regarding appeals in capital cases in Canada can be gathered from the following provisions of the Criminal Code of Canada, (as amended in 1961 by 9-10 Eliz 2 Ch. 44 assented to on 13th July 1961) sections 583, 584, 597, 598 and 601 cited below:--

"583. A person who is convicted by a trial court in proceedings by indictment may appeal to the court of appeal---

(a) against his conviction

(i) on any ground of appeal that involves a question of law alone,

(ii) on any ground of appeal that involv-

es a question of fact alone or a question of mixed law and fact, with leave of the court

1. Based on information obtained through New Zealand High Commission, New Delhi.

102

of appeal or upon the certiﬁcate of the trial judge that the case is a proper case for appeal, or

(iii) on any ground of appeal not men- tioned in sub-paragraph (i) or (ii) that appears to the Court of Appeal to be a suffi- cient ground of appeal, with leave of the court of appeal, or

(b) against the sentence passed by the trial court with leave of the court of appeal or a judge thereof unless that sentence is one ﬁxed by law.

583A. (1) Notwithstanding any other provision Right 0f of this Act a person who has been sentenced to death 3533110' sen ten ccd{to.

may appeal to the court of appeal.

(a) against his conviction on any ground of d€<'=*"7- appeal that involves a question of law hr fact or mixed law and fact; and

(b) against his sentence unless that sentence is one ﬁxed by law.

(2) A person sentenced to death shall, notwith-- Notice standing he has not given notice pursuant to section gggglgggg 586, be deemed to have given such notice and to have ggvem appealed against his conviction and against his sen- ence unless that sentence is one ﬁxed by law, (3) The court of appeal, on an appeal pursuant to court of appealgmay this section, shall-

_ consider.

(a) consider any ground of appeal alleged in the notice of appeal, if any notice has been given, and

(b) consider the record to ascertain whether there are present any other grounds upon which the conviction ought to be set aside or the sen- tence varied, as the case may be,

584. (1) The Attorney General or counsel instruct- Righter ed by him for the purpose may appeal to the court of Atmmey appea1__ General t o appeal.

(a) against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone, or

(b) with leave of the court of appeal' or a judge thereof, against the sentence passed by a trial court in proceedings by indictment, unless that sentence is one ﬁxed by law.

'(2) Acquittal. For the purposes of this section a judg- ment or verdict of acquittal includes an acquittal in res- pect of a principal offence where the accused has been con-A victed of an offence included in the principal offence.

Appeal from convicti on Second Appeal Appeal on law or !aCt or mixed law and fact.

Appeal by Attorney General.

103

597. (1) A person who is convicted of an indict- able offence whose conviction is aﬁirmed by the court of appeal may appeal to the Svuprerrue Court of Canada

(a) in case of dissent--on any question of law on which a judge of the court of appeal dis- sents, or

(b) on any question of law, if leave is grant- ed by the Supreme Court of Canada within twenty-one days after the judgment appealed from is pronounced or within such extended time as the Supreme Court of Canada or a judge there- of may, for special reasons, allow, 1956, ;. 48, s.

19. (2) A person

(a) Appeal where acquittal set aside---- who is acquitted of an indictable oﬁence and whose acquittal is set aside by the court of appeal, or

(b) Where joint trial--who is tried jointly with a person referred to in paragraph (a) and is convicted and whose conviction is sustained by the court of appeal.

may appeal to the Supreme Court of Canada on a question of law. [ss. 1023(1), (2), 1025 (1) in part] amended (1956), c. 48, s. 19."

597A. Notwithstanding any other provision of this Act, a person-

(a) who has been sentenced to death and whose conviction is affirmed by the court of appeal, or

(b) who is acquitted of an offence punishable by death and whose acquittal is set aside by the court of appeal, may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact,

598. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 583 or 583A or dismisses an appeal taken pursuant to paragraph (a) of sub-section (1) of sec- tion 584, the Attorney General may appeal to the Supreme Court of Canada.----

(a) In case of Dissent.--on any question of law which a judge of the court appeal dissents, or

(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada with- in twenty-one days after the judgment appealed 104 from is pronounced or within such extended time as the Supreme Court of Canada or a judge there- of may_ for special reasons, allow." [Am. 1956, ch. 48, s. 20(1)].

601. The Attorney General of Canada has the Right of same rights of appeal in proceedings instituted at the r(°*}f§'1:'r'a€l3'of instance of the Government of Canada and conducted Canada to by or on behalf of that Government as the Attorney appea1_ General of a province has under this party.

APPENDIX VII PROVISIONS REGARDING PREGNANT WOMEN AND DEATH SENTENCE (Position in certain other countries) PREGNANT WOMEN Australia.----Sentence to death not to be passed on ex- pectant mothers. (U. N. Publication, 'Capital Punish- ment' (1952) page 25, paragraph 69).

It is to be respited in Tasmania, and W. Australia (R. C. Report, page 451, paragraph 47).

Cavnada--Section 577, Criminal Code. Women sen- tenced to death may "move in arrest of execution" on ground of pregnancy. Thereupon court has to direct one or more registered medical practitioners to be sworn to examine her. If from their report it appears that she is pregnant, execution "shall be arrested" until delivery or until it is no longer possible in the course of nature that she be delivered.

(Appeal against ﬁnding allowed).

Ceylon--Sentence of death not to be passed on an ex- pectant mother, (S. 54, Penal Code) (See R. C. Report page 451, para- graph 46).

Chile----Sentence of death not to be notiﬁed till 40 days elapse after child-birth.

G1-ee.ce--Postponpd for 6 months in case of breast feeding; otherwise postponed for 30 days.

Iravn--Postponed for two years in case of breast-feed- ing; otherwise postponed for 3 months_ (U. N. Publication, page 25, paragraph 69). New Zealand-- (Section 15, Crimes Act, 1961).

Sentence of death not to be passed on pregnant women. Instead, she is to be sentenced to life imprison- ment. (Appeal against ﬁnding allowed).

105

U.K.--Sentence of Death (Expectant Mothers) Act, 1931-Substitution of penal servitude for life.

Many other countries.--Execution of sentence is post- poned until delivery (U. N. Publication, page 49, para- graph 185).

APPENDIX VIII AGE AND CAPITAL PUNISHMENT~---POSITION IN CERTAIN STATES or INDIA AND IN CERTAIN OTHER COUNTRIES AGE Part A--Position in some States of India Andhra Pradesh See Hyderabad.

Bombay Bombay Children Act, 1948 (71 of 1948) Section 68 (1) read with section 4(e) and (s) No youthful offender can be sentenced to death.

"Youthful offender" means any child who has been found to have committed an offence.

"Child" is a boy or girl under 16, Under section 5, a person is deemed a child if at the time of arrest or initiation of proceedings he had 11ot attain- ed the age of 16 years. But if such person attains 16 dur- ing the proceeding, the proceedings shall be continued and "orders may be passed in respect of such person under this Act, as if such person was a child."

Central Provinces C.P. Children Act (10 of 1928) Section 26, read with Section 2(a) (b) No "child" or "young person" can be sentenced to death. A "child" is a person under 14; where a child has been sent to a certiﬁed school, the deﬁnition applies to him not- withstanding that he may have attained 14.

"Young person" is a person who is aggd 14 years or upwards but under 16.

East Punjab Under section 27 of the East Punjab Children Act (East Punjab Act 39 of 1949) 'no person who was a child at the 106 date of the commission of the offence" shall be sentenced to death, etc. Under section 3(c) of that Act, "child"

means a person under the age of sixteen years. The sec- tion contains the usual provision relating to a child sent to a certiﬁed school.

Gujarat See Bombay.

Hyderabad Under section 21 of the Hyderabad Children Act, 1951 (32 of 1951), no child shall be sentenced to death, but under section 21 (2), this prohibition against sentence of death does not apply to offences against any law relating to a matter in the Union List. Under section 2(d), "child" means a person under the age of sixteen years, and, when used with reference to a child sent to a certiﬁed school, applies to that child during the period of his detention notwithstanding that the child has attained the age of sixteen years.

M adhya Pradesh See Central Provinces.

Madras Madras Children Act, 1920 (4 of 1920) Section 22 read with Section 3(1), 3(2) No child or young person can be sentenced to death.

"Child" is a person under the age of 14; but if a child is sent to an approved school, the deﬁnition applies to him during the whole period of detention. "Young person" is a person who is aged 14 years or upwards and is under the age of eighteen years. (See Amendment ..Act 37 of 1958).

Maharashtra See Bombay.

Mysore Under section 25 of the Mysore Children Act (Mysore Act 45 of 1943), a child shall not be sentenced to death. Under section 2(a) of that Act, "child" means a person under the age of sixteen years. The section contains the usual provision as to a child sent to a certiﬁcate school.

Uttar Pradesh Under section 27 of the U.P. Children Act (U.P. Act 1 of 1952), no court shall sentence a child to death. Under section 2(4) of that Act, "child" means a person under the age of sixteen years.

I07 West Bengal West Bengal Children Act (West Bengal Act 30 of 1959) Assented to by the President and published on 3.1.1961 Section 24 (1) read with section 2(h)--"juveni1e delin- quent" and section 2(d)--"child".

No juvenile delinquent can be sentenced to death.

"Juvenile delinquent" is a ''child'' who has been found to have committed an offence.

"Child" is a person who has not attained the age of 18 years. Under section 3, if during. the course of any pro- ceedings, a child attains 18, "the proceedings may be conti- nued and orders may be made under this Act in respect of him as if he was a child."

Union Territories Children Act, 1960 (Central Act 60 or 1960) Section 22(1) read with section 2(e) (j) A boy under 16 or a girl under 18 cannot be sentenced to death. This is the effect in substance, because a delin- quent "child"--that is a child who has been found to have committed an offence cannot be sentenced to death.

"Child" is defined as boy who has not attained 16 or a girl who has not attained 18.

Under section 3, where an inquiry has been initiated and, during the inquiry the "child" ceases to be such, the inquiry may be continued and "order" may be made as if such person had continued to be a child.

Part B--Position in some other countries Austria (Europe) A person under 20 years cannot be sentenced to death'.

Canada No exemption for age seems to have been enacted by statute.

France A person under 18 years cannot be sentenced to deathz.

.___-

I-2. U.N. Publication, Capital Punishment, 1962, page 25, paragraph 70, 108 New Zlealand No death sentence can be ordered in respect of a person "under 18 years at the time of offence. Section 16, Crimes Act, 1961.

United Kingdom No death sentence can be ordered in respect of a person who "appears to the court" to have been under 18 years at the time of offence.

Section 53, children and young persons Act 1933 as sub- stituted by section 9(3), Homicide Act (1957).

APPENDIX IX CAPITAL CRIMES IN SOME COUNTRIES 01* THE BRITISH COMMONWEALTH (DETAILED STATEMENT) Note : Expl. of Symbols : --l- 2 Capital murder .. :--- Not Capital murder Canutla New Zcaland (Queensland has totally (Ste Criminal Code ol'Canada Penal Code (Revised (See Crimes Act, 1961). abolished death sentence. as amended 1960-1961 Sta-- Laws) I956----Chap. 19 See the Criminal Code tures Chapter 44). (suspended in 1958 Amendment Act, 1922). and restored by Act 25 of 1959)-

Gencral Note +Comm0nwealth of +If Capital murder + Murder 9 Australia Section 24. Act 1914-1960 for treason and Ordi-

nances for Territories for murder.

+Victoria section 475, Crimes Act 1958.

Four Statutes L---

(a) Treason Act, 1353,

(b) Dockyards Protec-

tiim Act, 1772 and Criminal Law Act 1827.

(d) Homicide Act, 1857 Section 5.

Jr-(Certain cases of murder. See Homicide Act, 1957), 601 +Sout'.i Australia Section II, Criminal Law Consolidation Act 1935- I952.

--{-Tasmania Section 56 and 158, Criminal Code Act, 1924.

+Western Australia If wilful. See Section 37 and 282 Criminal Code Act 1913 amended in 1961.

. .Queens1and . .New South Wales-N.S.W. abolished for most offences by Crimes (Amendment) Act 1955 Piracy +New South Wales Treason +Commonwealt}i of Australia + +Victoria +Tasmania +Western Australia +N¢w South Wales.

Rape (In Canada it was previously Capital) Setting ﬁre to H. M. Sﬁips of War and dock-

yards.

Arson + "See setting Fire".

011 111

APPENDIX X COUNTRIES IN WHICH DEATH SENTENCE IS MANDATORYI FOR CERTAIN OFFENCES List of cozmtries in -which deal/z sentence is mandatory for certain njfentes Erips UK. (P_>;i:ioi as in Country November, 1964) Spain , Greece America Canada .

U.S.A. .

'South America A'tstrah'a 'cfrica Asia 2 Bu? na .

Japan .

India .

Malaya .

Pakistan Iran, Iraq and Ceylon Hong Kong Lebanon Miriiatory or ﬁve cases of "capital murder", Mandatory speciﬁed in the Homicide Act, 1957.

Mandatory for banditry and terrorism. (Sentence to be awarded by military courts).

Mandatory for crimes against national integrity.

Mandatory for capital murder, for piracy, and also for conviction in military courts for certain crime against national defence and for treason in time of war.

Ivlandatory in certain States.

Mandatory in certain cases. Discretionary in others.

Under the federal legislation, mandatory for treason. Under the legislation of certain states, general mandatory for murder and treason.

Mandatory in some cases. Discretionary in others.

Mandatory for (i) murder committed by a convict serving a life or long-term sentence and for (ii) murder committed in the course of other crimes, and for (iii) certain aggravated forms of murder.

Mandatory for certain crimes against security of the State.

Mandatory for murder committed by a convict serving a sentence of life imprisonment for (section 303, Indian Penal Code'.

Mandatory for certain aggravated forms of murder.

Mandatory for murder committed by a convict servin a life or long-term sentence.

Mandatory in certain cases.

Mandatory for certain aggravated forms of mur- der.

Mandatory for certain aggravated forms of mut- der.

1. B1331 3'1 ni?.i'y " Ctpital f'1i'.;'in:i:", 3) i')'.'.;i:i by th: Uiited N'1tions(t952),

-tpages It and 12, paragraphs 15 to 19.

112

APPENDIX XI Ex'rRAc'rs FROM THE BURMESE PENAL CODE, AND ANALYSIS or ms BURMA PROVISIONS Extracts from the Burmese Penal Code'

299. (1) Whoever causes death by doing an act with the intention of causing such bodily injury as is likely to cause death commits the offence of culpable homicide not amounting to murder.

(2) Whoever causes death by doing an act with the in- tention of causing death, or with the intention of causing such bodily injury as in fact is sufficient in the ordinary course of nature to cause death, commits the offence of culpable homicide not amounting to murder in any of the following cases:-- '

(a) If he, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident:

Provided-

First--that the provocation is not sought or the offender by an excuse for killing or doing harm to any person;

Secondly--that the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; and Thirdly--that the provocation is not given by anything done in the lawful exercise of the right to private defence.

Explanation---Whether the provocation was grave and sudden enough to deprive the offender of the power of self-control is a question of fact.

(B) If he, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and cause the death of the person against whom he is exercising such' rights of defence with-

out premeditation and without any intention of doing more harm than is necessary for the purpose of defence.

(C) If he, being a public servant or siding a public servant for the advancement or public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of the duty of such public servant and without ill-will towards the person whose death is caused.

1. Amended by--.;:t xxxm, 1947, and Act III,--z948.

Cu Ipeble ho micide.-

113

(D) If he acts without premeditation in a sudden ﬁght in the heat of passion upon a sudden quarrel and Without having taken undue advantage or acted in a cruel or un- usual manner.

Ea3planat1'0n----It is immaterial in such cases which party offers the provocation or commits the ﬁrst assault.

(E) If he causes the death of a person who is above the age of eighteen years and who suffers death or takes the risk of death with his own consent.

300'. Whoever, in the absence of any circumstances Murden which makes the act one of culpable homicide not amount- ing to murder, causes death by doing. an act with the in- tention of causing death, or With the intention of causing bodily injury as in fact is sufﬁcient in the ordinary course of nature to cause death, commits the offence of murder.

300A'-'. In sections 299 and 300-- Exp1ana,_

(a) a person who causes bodily injury to another 3?1I:,:,,O1£ who is labouring under a disorder, disease or bodily homicide. inﬁrmity, and thereby accelerates the death of that other, shall be demed to have caused his death.

(b) where death is caused by bodily injury, the offender's knowledge of the weakness or inﬁrmity of the person on whom the bodily injury is inﬁicted is a relevant factor in proving thg nature of his intention.

(c) the offender's knowledge that an act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, is a relevant factor in proving the nature of his intention.

(e) the causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been com- pletely born.

301. If a person, by doing anything which he intends Culpable or knows to be likely to cause death, commits an offence homicidfé by causing the death of any person whose death he neither gZaff":"§}"3 intends nor knows himself to be likely to cause, the person other offence committed by the offender is of the description of than person which it would have been if he had caused the death of "'h°5° dmh the person whose death he intended or knew himself to be 3:3 intend' likely to cause.

I. Substituted by Act XXXIII, 1947.

2. Inserted ibid.

9-122 Law.

114

Eacplanation.--In this section the word "offence" means:

an offence described in section 299 or section 300 or sec-- tion 304A of the Penal Code.

Iggpgflfggjggf 3021. (1) Whoever commits murder-

(a) being under sentence of transportation for' life, or

(b) with premeditation, or

(c) in the course of committing any offence;

punishable under this Code with imprisonment for a term which may extend to seven years, shall be punished with death, and shall also be liable to ﬁne.

(2) Whoever commits murder in any other case shall be punished with transportation for life, or with rigorous. imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne.

Explanation.--Whether an act is premeditated is a question of fact.

303. * * * * Punishment for culpable 304.2 Whoever causes the death of any person by"

h°miCid'= life, or imprisonment of either description for a term mt amoun" which may extend to ten years, and shall also be liable to ing to mur-

dsn ﬁne.

Causing 3O4A3. Whoever causes the death of any person by gggwgelﬁe doing any rash or negligent act not punishable as culpable ' homicide or murder shall be punished with imprisonment. of either description for a term which may extend to seven years, and shall also be liable to ﬁne provided that if such act is done with the knowledge that it is likely to cause death the term of imprisonment may extend to ten. years.

Abeunent 305. If any person under eighteen years of age, any in- °f 3"'°'d° sane person, any delirious person, any indict, or any per---

i",,fs§n,:,1':,e°,r_ son in a state of intoxication commits suicide whoever son. abets the commission of such suicide shall be punished:

with death or transportation for life, or imprisonment for a term not exceeding ten years, and shall also be liable to» ﬁne.

I. Substituted for sections 302 and 303, ibid.

2. Substituted by Act XXXIII, 1947.

3. Substituted by Act L11, 1948.

115

306. If any person commits suicide, whoever abets the commission of such suicide shall be punished with impri-

sonment of either description for a term which may extend to ten years, and shall also be liable to ﬁne.

307. Whoever does any act with such intention [* * *1] and under such circumstances that, if he by that act caus- ed death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to ﬁne; and, if hurt is caused to any person by such act, the offender shall be liable either to transportation for life, or to such punishment as is hereinbefore mentioned.

When any person offending under this section is under sentence of transportation for life, he may, if hurt is caus- ed, be punished with death.

Illustrations

(a) A shoots at Z with intention to kill him, under such circumstances that, it death ensued, A would be guilty of murder. A is liable to punishment under this section.

(b) A with the intention of causing the death of a child of tender years exposes it in a deserted place. A has com- mitted the offence deﬁned by this section, though the death of the child does not ensue.

(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A ﬁres the gun at Z. He has committed the offence deﬁned in this section, and if by such ﬁring he wounds X he is liable to the punishment provided by the latter part of the ﬁrst para-

graph of this section.

((1) A, intending to murder X by poison, purchases poison and mixes the same with food which remains in A's keeping; A has not yet committed the oifence in this sec- tion. A places the food on Z's table or delivers it to TS servants to place it on Z's table. A has committed the offence deﬁned in this section.

308. Whoever does any act with such intention [* * *]1 and under such circumstances that if he by that act caused death, he would be guilty of culpable homicide not amount- ing to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with ﬁne or with both, and, if hurt is caused to any person by such act shall be punished with imprison- ment of either description for a term which may extend to seven years, or with ﬁne, or with both.

I. The words "or knowldcgi-2" were emitted by Act XXXIII, 1947.

Abetment of suicide.

Attempt to murder.

Attempt by 1ife--Convicts .

Attempt to Commit culpable homicide.

116

Illustration.

A, on grave and sudden provocation, ﬁres a pistol at Z, under such circumstances thatif he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence deﬁned in this section.

Analysis of the Burmese sections The important changes made by the Burmese Penal Code in the section relating to culpable homicide and mur- der can be roughly analysed as follows:--

(1) Causing death by an act done with the intention of causing death is murder in India in the absence of the exceptional circumstances (mentioned in section 300, Exceptions, in India). But in Burma the exceptional circumstances have been grouped with the section re-

lating to culpable homicide not amounting to murder, and have been removed from the section dealing with murder, for better understanding. Section 300, Burma and section 299(2), categories A to E, Burma.

(2) Where death is caused by an act done with the intention of causing such bodily injury as is likely to cause death, it is only culpable homicide. The offend- ers knowledge of the peculiar inﬁrmity of the victim does not necessarily make it murder, but is a relevant factor in proving the nature of his intention. Section 299(1), Burma, section 300A (b), Burma.

(3) Causing death by an act done with the intention of causing bodily injury as is sufﬁcient, etc., to cause death--in this category, the words "in fact" have been inserted before "is sufﬁcient"--apparently to make it clear that it is not the subjective knowledge of the offender which is here relevant, but (objectively) the nature of the injury. Section 300, Burma (If excep- tional circumstances are present), section 299(2), Burma.

(4) Causing death by an act done with the know- ledge that the offender is likely, by such act to cause death, ceases to be culpable homicide and ceases to be murder also, and merely becomes an offence punishable as "causing death by negligence" under section 304A, the only special provision being that in such a case, the imprisonment may extend to 10 years. Section 304A, latter half, Burma.

(5) Having made the substantive changes regarding the offence of murder, so as to take out certain cate- gories out of that offence, the Burmese Code divides murders into two sub-clauses for the purposes of punish- ment. If the murder is committed by a person--

117

(a) being under sentence of transportation for lite; or

(b) with pre-meditation; or

the offender "shall be punished with death and shall also be liable to fine" (no discretion to court to award lesser sentence). Section 302(1), Burma.

A person committing murder in any other case is punishable with transportation for life or rigorous imprisonment up to 10 years and also liable to ﬁne. (Thus, the imprisonment need not be for life, as in India). Section 302(2), Burma.

(6) Punishment for culpable homicide which does not amount to murder, has been simpliﬁed. Instead of the t\vo categories mentioned in the Indian Penal Code, section 304, the punishment in Burma is transportation for life or imprisonment of either description up to 10 years, and also ﬁne. Section 304, Burma.

(7) Causing death by negligence----section 304A----

the punishment in India is two years' imprisonment while in Burma, it is 7 years (or if the act is done with the knowledge that it is likely to cause death, then 10 years). Further, in India imprisonment is not compul- sory. because tine can be awarded without awarding imprisonment while in Burma imprisonment is compul- sory. Section 304, Burma.

(8) Regarding attempt to murder, mere knowledge is not enough and intention is required. Apparently, mere knowledge or likelihood of death in a case of attempt to murder is left to be dealt with by the ordi- nary provision in section 511. This appears to be con- sequential on the removal of knowledge from the sec- tion dealing with murder, Section 307, Burma.

Attempt to commit culpable homicide not amount- ing to murder--here also the Word "knowledge" has been removed. This is also apparently consequential on the removal of the element of knowledge from sec- tion 299 and its placing under section 304. Section 308, Burma.

Summary The scheme appears to be-

(i) To concentrate on intention while dealing with offences both under section 299 and under section 300.

(ii) Further, even international acts punishable under murder have been classiﬁed, as regards punish-

ment, mainly on the basis of pre-meditation (apart from two special cases).

Short title Suspension of capital punishment for murder and abet-

ment of sui-

cide and imposition of rigorous imprison-

ment for life for those 0ﬂen-

ces.

Duration of Act.

118

APPENDIX XII CEYLON Acrs REGARDING CAPITAL PUNISHMENT Suspension of Capital Punishment Act. No. 20 of 1958.

(Date of Assent May 9, 1958) L.D.--O. 13/56.

AN ACT TO SUSPEND THE IMPOSITION OF CAPITAL PUNISHMENT FOR MURDER AND THE ABETMENT OF SUICIDE AND TO PRESCRIBE OTHER PUNISHMENT FOR THOSE OFFENCES.

(Date of Assent: May 9, 1958) BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and House of Representatives of Ceylon in this present Parlia- ment assembled, and by the authority of the same, as follows: -

1. This Act may be cited as the Suspension of Capital Punishment Act, No. 20 of 1958.

2. During the Continuance in force of this act-«~

(a) capital punishment shall not be imposed under section 296 of the Penal Code for the commission of murder and under section 299 of the Penal Code for the abetment of suicide, and

(b) section 296 and section 299 of the Penal Code shall have effect as if, for the word "death" occurring in each of those sections, there were substituted the words "rigorous imprisonment for life".

3. This Act shall continue in force for three years and shall then expire:

Provided, however, that if the Senate and the House of Representatives by resolution so declare, this Act shall con- tinue in force for such further period as may be speciﬁed in such resolution.

119

'Suspension of Capital Punishment (Repeal) Act, No. 25 of 1959 (Assented to on December, 2, 1959.) '_L.D.-O. 13/56.

AN ACT TO REPEAL THE SUSPENSION OF CAPITAL PUNISHMENT ACT NO. 20 OF 1958, AND TO PROVIDE FOR CERTAIN MATTERS CONNECTED THEREWITH (Date of Assent: December 2, 1959) BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Senate and the House of Representatives of Ceylon in this present Parlia- ment assembled, and by the authority of the same, as follows:----

1. This ACT, may be cited as the Suspension of Capital Punishment (Repeal) Act, No. 25 of 1959.

2. The Suspension of Capital Punishment Act, No. 20 of 1958, is hereby repealed.

3. Notwithstanding anything in any other written law, icapital punishment shall be imposed----

(a) under section 296 of the Penal Code on every person who, on or after the date of the commencement of this Act, is convicted of the offence of murder com- mitted prior to that date; and

(b) under section 299 of the Penal Code on every person who, on or after that, date is convicted of the offence of abetment of suicide committed prior to that date.

APPENDIX XIII ExiRAcrs or SECTIONS 194, 201 AND 202 or THE CANADIAN CRIMINAL Coma "I94. (1) A person commits homicide when, directly or ;ndirectly, by any means, he causes the death of a human soeing.

(2) Homicide is culpable or not culpable.

(3) Homicide that is not culpable is not an offence.

(4) Culpable homicide is murder or manslaughter iinfanticide.

or (5) A person commits culpable homicide when he causes "the death of a human being,

(a) by means of an unlawful act.

(b) by criminal negligence, Short title Act No. 20 of 1958.

Imposition of capital punishment on persons convicted, on or after the date of commence-

ment of this Act, of the offence of murder or abetment of suicide committed prior to that date.

Homicide.

Kinds of Homicide.

Culpable Homicide.

Idem.

Exception Murfcr Murder in commission of offences.

Intention to cause bodily harm .

(c) by causing that human being, by threats or fear of violence of by deception, to do anything that causes his death, or

(d) wilfully frightening that human being, in the case of a child or sick person.

(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

201. Culpable homicide is murder-

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

(b) Where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows to likely to cause his death, and being reck- less whether death ensues or not, by accident or mis- take Qauses death to another human being, notwith- standing that he does not mean to cause death or bodily harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human be- ing, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

202. Culpable homicide is murder where a person causes the death of a human being while committing or attempt- ing to commit treason or an offence mentioned in section

52. piracy, escape or rescue from prison or lawful custody, resisting lawful arrest, rape, indecent assault, forcible abduction, robbery, burglary or arson, whether or not the person means to cause death to any human beingland whe~ ther or not he knows that death is likely to be caused to any human being, if f (a) he means to cause bodily harm for the purpose 0 _,

(i) facilitating the commission of the offence, or - i

(ii) facilitating his ﬂight after committing or' attempting to commit the offence, and the death' ensues from the bodily harm;

121

. . C - . - ' d i 'te -

(b) he administers a .stupef_y1ng Ol overpowering iAng"1)3€'i_ ' thing foe a purpose mentioned in panagaaph (a), and powemg the death ensues therefrom; thing-

(c) he wilfully stops, by any means, the breath of [S1§<£Pl1)3riQ§[h, 2 human being for a purpose mentioned in paragraph :a), and the death ensues therefrom; or , V ' ' ~ Using

(d) he uses a Weapon 01 ha, it upon his peison weapons'

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his ﬂight after comn'iiting or attempting to commit the offence, and the death ensues as a consequence."

APPENDIX XIV CANADIAN ACT or 1961.

C"amzda---1961 Amendments 9----10 ELIZABETH II CHAP. 44 An Act to amend the Criminal Code (Capital Murder). I953-54, C. I Z _ 19555, /cc.2.

(Assented to on 13th July, 1961) 45 ;

Her Majesty, by and with the advice and consent of the i§§§:5§; 3 Senate and House of Commons of Canada, enacts as fol- 28;

lows:---- 1958» C-

18;

1. The Criminal Code is amended by adding thereto, 1956?; $415 immediately after section 202 thereof, the following sec-- 9 ' '37 tionI----

."202A. (1) Murder is capital murder or non- Classiﬁcation capital murder. of murder.

. . . C 't1 (2) Murder 1S capital murder, in respect of any mfﬁiigr person, where-- deﬁned.

(a) It is planned and deliberate on the part Deliberate- of such person.

(b) It is within section 202 where such person-

(i) by his own act caused or assisted in Own act causing the bodily harm from which the death ensued,

(ii) by his own act administered or assisted in administering the stupefying or overpowering thing from which the death ensued.

(iii) by his own act stopped or assisted in the stopping of the breath from which the death ensued, Victim he I 1);,-

a public ofﬁcer.

'Non-capital 'murder.

Punishment for cap ital murder.

Mandatory.

Punishment for non-

'capital mur-

der.

Exception for persons under age of eighteen years Minimum Punishment.

Capital murder to be speciﬁ-

cally charged.

122

(iv) himself used or had upon his person the weapon as a consequence of which the death ensued, or

(v) Counselled or procured another per- son to do any act mentioned in sub--paragraph

(i), (ii) or (iii) or to use any weapon men- tioned in sub--paragraph (iv), or

(e) such person by his own act caused or assisted in causing the death of

(i) a police officer, police constable, con- stable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties, or

(ii) a warden, deputy warden, instructor, keeper, goaler, guard or other officer or perma- nent employee of a prison, acting in the course or his duties, or counselled or procured another person to do any act causing or assisting in causing the death.

(3) All murder other than capital murder is "non- capital murder.".

2. Section 206 of the said Act is repealed and the fol-

lowing substituted therefor;

"206. (1) Everyone who commits capital murder is guilty of an indictable offence and shall be sentenc- ed to death.

(2) Everyone who commits non-capital murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

(3) Notwithstanding sub-section (1), a person who appears to the court to have been under the age of eighteen years at the time he committed a capital murder shall not be sentenced to death upon convic-

tion therefor but shall be sentenced to imprisonment for life.

(4) For the purposes of Part XX, the sentence of imprisonment for life prescribed by this section is a minimum punishment.".

3. The said Act is further amended by adding thereto, immediately after section 492 thereof, the following sec- tions:--

"492A. No person shall be convicted of capital murder unless in the indictment charging the offence he is speciﬁcally charged with capital murder.".

123

4. Sub-sections (1) and (2) of section 515 of the said Act are repealed and the following substituted therefor;

"515. (1) An accused who is not charged with an P1?a5dP°"' offence punishable by death and is called upon to plead 'I§'1'e';eo'f guilty or not guilty, or the special pleas authorized by guil[y_ this Part and no others.

(2) Where an accused who is not charged withRef'lSa1t° an offence punishable by death refuses to plead or does 9 ad' not answer directly, the court shall order the clerk of the court to enter a plea of not guilty "(2a) An accused who is charged with an offence Pleas where punishable by death and is called upon to plead may Ogglsscgable plead not guilty, or the special pleas authorized by this gy death part and no others.

(2b) Where an accused who is charged with an Where no offence punishable by death does not plead not guilty Plea meted' or one of the special pleas authorized by this part or does not answer directly, the court shall order the clerk of the court to enter a plea of not guilty.".

5. Sub-section (4) of section 516 of the said Act is re- pealed and the following substituted therefor:---

"(4) When the pleas referred to in sub-section (3) Pleading are disposed of against the accused, he may plead °"'°"

guilty or not guilty, unless he is charged with an offence punishable by death, in which case the court shall order the clerk of the court to enter a plea of not guilty.''.

6. Section 519 of the said Act is amended by adding thereto, immediately after sub-section (2) thereof, the following sub-section:---

"(2a) A conviction or acquittal on an indictment Eﬁect of for capital murder bars a subsequent indictment for previous the same homicide charging it as non-capital murder, °haFt8° ''f and a conviction or acquittal on an indictment for 3:3' *3;''"'' non-capital murder bars a subsequent indictment for nomcapital the same homicide charging it as capital murder." mllrdch

7. Section 569 of the said Act is amended by adding thereto, immediately after sub-section (1) thereof, the following sub-section:----

"(1) (a) For greater certainty and without limit- Wh°'° :3?"

ing the generality of sub-section (1), where a court 3}a,r;e"§ er charges capital murder and the evidence does not and part prove capital murder, but proves non-capital murder, Oﬂly Pr°V¢d~ or an attempt to commit non-capital murder, the jury may ﬁnd the accused not guilty of capital murder but Right of appeal of person sentenced to death.

Appeal see also s.

597A below as to Second appeal.

Notice deemed to have been given .

Court of appeal may Consider.

Suspension of execution of sentence of death.

Transcript of evidence.

13+ guilty of non--capital murder or an attempt to commit non-capital murder, as the case may be".

8. The said Act is further amended by adding thereto, immediately after section 583 thereof, the following sec-

tion:---

"583A. (1) Notwithstanding any other provision of this Act a person who has been sentenced to death may appeal to the court of appeal.

(a) against his conviction on any ground of appeal that involves a question of law or fact or mixed law and fact; and

(b) against his sentence unless that sentence is one ﬁxed by law.

(2) A person who has been sentenced to death shall, notwithstanding he has not given notice pursuant to section 586, be deemed to have given such notice and to have appealed against his conviction and against his sentence unless that sentence is one ﬁxed by law.

(3) The court of apeal, on an appeal pursuant to this section, shall----

(a) consider any ground of appeal alleged in the notice of appeal, if any notice has been given, and

(b) consider the record to ascertain whether there are present any other grounds upon which the conviction ought to be set aside or the sentence varied, as the case may be.".

9. Section 586 of the said Act is amended by adding thereto the following sub-section:--

"(5) Where,, pursuant to a conviction, a sentence of death has been imposed, the execution of the sent-

ence shall be suspended until after determination of the appeal pursuant to section 583A whether or not the production of a certiﬁcate mentioned in sub-section (4) has been made, and Where, as a result of such suspen- sion, a new time is required to be ﬁxed for the execu- tion of the sentence it may be ﬁxed by the judge who imposed the sentence or any judge who might have held or sat in the same court". '

10. (l) Sub-section (2) of section 588 of the said Act is repealed and the following substituted therefor:----

" (2) A, copy or transcript of--

(a) the evidence taken at the trial, 125

(b) the charge to the jury, if any,

(c) the reason for judgment, if any, and

(d) the addresses of the prosecutor and the accused or counsel for the accused by way of summing up, if

(i) a ground for the appeal is based upon either of the addresses, or

(ii) the appeal is pursuant to section 583A, shall be furnished to the court of appeal, except in so far as it is dispensed with by order of a judge of that court.".

(2) Sub-section (4) of section 588 of the said Act is repealed and the following substitution therefor:--

"(4) A party to the appeal 1S entitled to rece1ve.§1':§;::t€'¢';

(a) without charge, if the appeal is against a Pam"-

conviction in respect of which a sentence of death has been imposed or against such sentence, or

(b) upon payment of any charges that are fixed by rules of court in any other case, a copy or transcript of any material that is prepared under sub-sections (2) and (3).".

11. The said Act is further amended by adding, thereto, Verying. immediately after section 597 thereof, the following sec-

tion:--

"597A. Notwithstanding any other provision of Appeal on law or fact or this Act, a person. .

miézegicltaw

(a) who has been sentenced to death and gﬂcond ' whose conviction is aﬂirmed by the court of /gippe-.11.

C6 2 S0 appeal' or sesction

(b) who is acquitted of an offence punishable 5 3A' by death and whose acquittal is set aside by the court of appeal, may appeal to the Supreme Court of Canada on any ground of law or fact or mixed law and fact".

12. All that portion of sub-section (1) or section 598 of the said Act preceding paragraph (a) thereof is repealed and the following substituted therefor:----

"598. (1) where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken ﬁggfgiyby under section 583 or 583A or dismisses an appeal taken General, 126 pursuant to paragraph (a) or sub-section (1) of sec-

tion 584, the Attorney General may appeal to the Supreme Court of Canada.".

13. The said Act is further amended by adding thereto, immediately after section 642 thereof, the following sec- tion:----

Recom-

mendation by jury.

Recommen-

dation for mercy.

642A. (1) Where a jury ﬁnds an accused guilty of an offence punishable by death, the judge who presides, at the trial shall, before discharging the jury, put to them the following question:

You have found the accused guilty and the law requires that I now pronounce sentence of death against him (or "the law provides that he may be. sentenced to death", as the case may be). Do you wish to make any recommendation as to whether or not he should be granted clemency. You are not required to make any recommendation but if you do make a re- commendation either in favour of clemency or against it, your recommendation will be included in the report that I am required to make of this case to the Minister of Justice and will be given due consideration.

(2) If the jury reports to the judge that it is un-

able to agree upon a. recommendation, either in favour of clemency or against it, and the judge is satisﬁed that further retention of the jury would not lead to agreement he shall ascertain the number of jurors who are in favour of making for recommendation for clemency and the number of jurors who are against making such a recommendation and shall include such information in the report required by sub--section 1 of section 643.".

14. Sub-section (2) of the section 643 of the said Act is repealed and the following substituted therefor:--

When Judge may reprieve Mercy recommenda-

tion.

Reprieve by court.

"(2) Where a judge who sentences a person to death or any judge who might have held or sat in the same court considers:--

(a) that the person should be recommended.

for the royal mercy, or

(b) that, for any reason, it is necesary to delay the execution of the sentence, the judge may, at any time, reprieve the person for any period that is necessary for the purpose.".

127

15. Section 656 of the said Act is amended by adding thereto the following sub-section:--

" (3) If the Governor in Council so directs in the instrument of commutation, a person in respect of whom a sentence of death is commuted to imprison-

ment for life or a term of imprisonment, shall, notwith- standing any other law or authority, not be released during his life or such term, as the case may be, with- out the prior approval of the Governor in Council.".

16. This Act shall come into force on a day to be ﬁxed by proclamation of the Governor in Council.

17. (1) Where proceedings in respect of an offence that, under the provisions of the Criminal Code as it was before being amended by this Act, was punishable by death were commenced before the coming into force of this Act, the following rules apply, name1y:------

(a) subject to paragraph (b), the offence shall be dealt with, inquired into, tried and determined, and any punishment in respect of that offence shall be imposed, as if this Act had not come into force;

(b) where upon conviction for the offence a person is sentenced to death after the coming into force of this Act, the provisions of the Criminal Code, as amend- ed by this Act, relating to appeals apply in respect of such conviction and sentence as if the offence had been committed after the coming into force of this Act; and

(c) where a new trial of a person for the offence has been ordered by the court of appeal of the Supreme Court of Canada and the new trial is commenced after the coming into force of this Act, the new trial shall be commenced by the preferring of a new indictment before the court before which the accused is to be tried, and determined, and any punishment in respect of the offence shall be imposed, as if it had been com- mitted after the coming into force of this Act.

(2) Where proceedings in respect of an offence that would, if it had been committed before the coming into force of this Act, have been punishable by death are com- menced after the coming into force of this Act, the offence shall be dealt with inquired into, tried and determined, and any punishment in respect of the offence shall be imposed, as if it had been committed after the coming into force of this Act irrespective of when it was actually committed.

Approval by Governor in Council releas commutation of sentence.

Coming into' force.

TransitionaL.

Pending pro-

ccedings.

Idemv of"

after' I28 DI°- (3) For the purposes of this section, proceedings in 21:: rggis respect of an offence shall be deemed to have commenced-- commenced.

(a) upon the preferring of a bill of indictment before the grand jury of the court, in the case of a court constituted with a grand jury, and

(b) upon the preferring of an indictment before the court, in any other case.

APPENDIX XV ABOLITION COUNTRIES TABLE ANALYSING EFFECT or RESTORATION Country Mandatory Tables analysing the eﬂect of Restoration Country Before abolition During abolition After restoration Remarks 'C0l0radO (U.S. I5-4(Annual a- 18 (Annaul ave- 19 (annual aver- Deterrent effect A.)' (Abolished verage of con- rage of convic-- age of convic-- not provej. I897, restored victions for tions for mur- tions for mur- 1901) murder for ﬁve der during four der for ﬁve years before years of aboli- years following abolition). tion). restoration).

'Iowa (U.S.A.)" 4 (convictions 7 (Convictions I5 (convictions The ﬁgures after (Abolished for murder) for murder). for murder) re-introduction I872, restored (1871) (2879) (1873) are higher. De- I878) terrent effect not proved.

(Recently some 3 (Convictions 2. (convictions 7 (1880) (Con-

States inc1ud- for murder) for murder) victions for ing Iowa, have (1872) (1874) murder) abolished or limited the 15 (convictions I4 (1882) (con-

death penaltylﬁ for murder) victions for (1875) murder).

I7 (1883) (Con-

victions for murder).

12 (1884) (Con-

victions for murder).

rFigures taken from R.C. Report, page 347, Professor Sel1in's comments below 'Table 18.

2Figures taken from R.C. Report, page 346, Table 17.

3See Clarence H. Patrick, "The Status of Capital Punishment; A World Perspective"

(1965 December), 56 Iournal of Criminal Law, Criminology and Police Science, 397, 411 .foot-note rz.

Country Before aboliton During abolition After restoration Remarks Kansas Not (-5 (Annual a\'-- 3-8 (Annual av- T/zcse prore the (U,S,A,'/.'--2-3 rclevant for erage homicide crage homicide deterrent effect.

presmt pur- rate for the rate for the pose. ﬁve years pre- five years fol- ceding restorn- lowing restora- tion fn I935). l;l0'l in 1935).

South Dakota Not relevant for r-4(Annualave- I-4(Anr1ualave-- Neutral.

(U.S.A.) 4-5 present pur-- rage homicide rage homicide Aboli shed pose. rate for five rate for ﬁre 1915, years preceding years following restored 1939 I'6St0I'8(l01'l in restoration in in I939)- in 1939).

Tennessee See 4th column. See 4th column. The homicide Inconclusive (U.S.A.)"--7 rates available (abolished (separately fer 1915, restored the white po-

I9r7). pulatjon and tne coloured population) are for 1918 to 1924. These show a steady increase from 1918 to 1924.

Tnus, for the coloured popu-

lation, the ra-

tes are 29-2, 4I'3. 42'4.

39'5, 45'9.

49-8 and 52-5 for the years 1918, I919, CtC., l'€S-

pectively.

Ariz0na(U.S.A.)3 24 homicides 53' homicides 25 hom:'c'des Incnnclusme (Abol shed (in all (1915) (in all) (1917) (in all) (1917) 1916, restored 19:8). 23 homicides 24 homicides 35 homicides (in all) (1916) (in all) (1918) (in all) (1920)

1. Figures taken from R.C. Report, page 346, paragraph 42.

2. For earlier ﬁgures, see R.C. Report, page 352, Table 27, 2nd column and Table 28 2nd column.

3. The ﬁgures are of deaths reported as due to homicide for I,oo,coo (One lakh) of the population, see R.C. Report page 346, paragraph 39.

4. Figures taken from R.C. Report, page 348, paragraph 46.

5. The ﬁgures are of deaths reported as due to homicide per r,co,cco (Ore lakh) ot the population; See R.C. Report page 346, paragraph 39.

6. Figures taken from R.C. Report, page 348, paragraph 47, Table 21.

7. The lirzures are of deaths reported as due to homicide, per 100,000 0f the populatim See R.C. Report, page 346, paragraph 39.

8. Figures taken from R.C. Report, page 349, Table 22 104-122 Law.

130

Country before abolition During abolition After restoraton Missouri 9-9 (homicide Io-1 (homicide 7-9 (homicide (U.S.A.)'--2 rate for 1919) rate for 1918) rate for 1920) (Aoolished 1917, restored 1919':

9-2 (l'0i'l1l\l.dC 9-7 (homicide 10- 1 (homicide rate for 1914) rate for 1919) rate for 1921) 9-2 (uomicide 1r-4 (homicide rate for 1915) rate for 1922) (Figures for 1916-1917 not available).

Washngton 6- 5(Annua1 ave- 7 - 4(Annua1 ave- 5 - 4(Annual ave- (U.S.A )3-4 rage rate for rage rate for rage rate for (Abolished the years 1908 1913 to 1915). the years 1920- 1913, restored 1919).

to 1912).

Oregon (U.S.A.)5 59 (murderers (Abol ﬁshed 1914, restored 1920'.

received at State penitenti-

31)) (1910- 1914).

24).

36 (murderers Not available.

received at t! e State penitenti-

ary) (1915- 1920).

Remarks Inconclusive because, after abolition one year shows in-

crease, wtule the next year does not show much increase ;

and, after res-

toration, one years shows de-

crease, while the next two years show increase.

These ﬁgures would seem to prove the de-

terrent effect.

Deterrent eifect not proved.

NOTE :--The years of abolition have been taken from the Report of the Royal Commiss'on on Capital Punshment' The years of abolition as given in another study differ in some cases'.

1. Figures taken from R.C. Report, page 349, Table 23.

2. The ﬁgures are of deaths reported as due to homicide per r,co,cco. See R.C. Re- port, page 346, paragraph 39.

3. Figures taken from R.C. Report, Table 19(a), Average as given below the Table.

Page 347.

4. The ﬁgures are of deaths due to homicide per 1,oo,oc-o (one Lakh) of the population. See R.C. Report page 346, paragraph 39.

5. Figures taken from R.C. Report, page 348, paragraph 45.

6. R.C. Report, page 345, Table 16.

7. Joyce, Right to L fc (1962), page 79.

131

APPENDIX XVI Table analysing effect of Nomrestoration---(abolition countries) Country Figures before Figures after Remarks abolition abolition Belgium' 5-8 (Annual average 72 (Annual average Inconclusive.

(in abeyance since 1863".

of death sentences for 1831-1835) 6.2( dftto 1836-7o Figures of homicides 9~6(ditto for 1841- known to police, or deaths reported as due to homicide not available).

Denmarki' .

(in abeyance since 1892. abolished I933) [taly4 . , _ (in abeyance since I 876; abolished 1890; Restored 193.1; Abolished again, 1944).

16-0 (ditto for 1848-

45)

53) 12-6 (ditto for 1856-

60) 7~ 6 (ditto for 1861-

65) 20 (Average annual number of convic-

tions for homicide from 1866-1870).

15-6 (---ditto. ---for 1871-75).

(Figures for a few later years not avail-

able).

r42 (per million for I881-85) (z'.e. average annual number of inten-

tional homicides for the period).

of death sentences for 1866-70) 7 '8(ditto fort 871-75 80 (ditto for 1881-

85) 9-4 (ditto for 1886-

90) 7- 2 (ditto for 1898- 1902) 8-6 (Average annual number of convic-

tions for homicide for (1901-05).

8(--ditt0 for 1906-

10).

10-2 (----ditto----

1911-15).

8 (--ditto-- for 1916-

20).

7-6 (--ditto--- for 1921-25).

[I2 (per million for 1891-1895) (Le. average annual number of i1ten-

tional homicides for the period)).

It should be added that the ﬁgures are of convictions and sentences, and not of reported murders The ﬁgures are of convictions, and not of reported murders Inconclusive.

for It may be added, that after restoration in 1931, the rate per million was 47 for the period 1931-35.

This shows a dec-

line after restoration, but it is said that as a matter of fact there is continuous decline in the homi-

cide rate for Italy'.

May be 'regardedas inconclusive

1. Figurestaken from R.C. Report, page 353, Table 39, Third Column.

2. In Belgium, after 1863, death sentences were imposed by the Courts but were not actually carried out.

Cf. R.C. Report page 346.

3. Figures taken from R.C. Report, page 354, Tablez Second Column.

4.Figures taken from R.C. Report, page 355, paragraph 60, and Table 32, First and Sixth Columns.

5. Cf. R.C. Report, page 356, paragraph 61 citing the comments of Professor Selin.

Country Before abolitiCI.

Quecnslal'-l (Austra-

lia)1 (in abeyarict since 1911. aboli-

shed 1922, not re-

stored).

23 (murders kncwr:

to police per mil-

lion. I905) 37 (ditto 1906).

35 (ditto 1907).

20 (ditto 1908).

14 (ditto 1909).

18 (ditto 1910).

30 (ditto 1911).

(In abeyance).

The Netherlands 2 (last execution in 1860 ;AbOlished 1870)"

32 (Number of cer-

tain crimes punish-

able with death--

ted murders etc. committed during 1 8 50- 1859).

.4 After abcmicrx Renzarks 19 (Murders known 1'nc0nclu51't'€.

to police per mil-

lion, 19I2)_ After abeyaﬁce in 1911, there was no 23 (ditto 1913) steady increase; after abolition in 1922 there was slight in--

crease (e.g., see ﬁg-

ures fcr 1925), but later there was de-

crease.

16 (ditto 1914).

16 (ditto 1915).

24 (ditto 1916) 20 (ditto 1917).

14 (ditto 20 1918).

(ditto 1919).

1 5 (ditto 1920).

2 1 (ditto 192 1).

18 (ditto 1922).

17 (ditto 1912).

13 (ditto 1924).

1925).

1926).

22 (ditto 16 (ditto 23 (ditto 1927).

I 1 (ditto 1928).

14 (ditto 1929).

1930).

1931).

9 (ditto 1932).

I0 (ditto I 3 (ditto 53 (number of cer-

tain crimes punish-

able with death--

I nconclusive z'.e. murders, attemp- Le. murders, attemp-

ted murders etc. c0m.mitted during 1860-1869).

(ditto for 1 871- 1880).

53 (ditto for 1881- 1890).

1. Figures taken from R.C. Report, page 344, Table 15, Fourth C€.lun:n.

2. Figures taken from R.C. Report, page 357, Table 34.

3. See R.C. Report, page 356, paragraph 62.

133

Country New Zealand Norway' . .

(No execution since 1875, abolished 1905).

Sweden? .

(In abeyance since 1910. Abolished 1921; rarely used since 1865).

S\vitzcrlantl"

(Abolishcd by the Federal Constitu-

tion of 1874, but in 1879, the Can-

tons were permit-

ted to re-introduce it. liinaily, aboli-

shed throughout Switzerland in 1942, when the Penal Code of 1939 came into effect)'.

(New Zealand) Before abolition After abolition Remarks See Note below.

28 (Annual average 24 (Annual average Deterrent effect not number of convic-

tions for murder

--(12559--186zs,.

12-4 (Annual average 9-0 (Annual average Deterrent numbc: of deaths due to murder, etc. per million, for 1846 to 1860).

11 -2(----ditto--for 1 861-1 877).

See fourtli column.

Note regarding New Zenland.

and restoration in 1950, for treason)'.

number of convic-

tions for murder for 1879-1888).

number of deaths due to homicide etc. per million for 1878 to 1898)' prowd.

effect not proved.

9>6 (--ditto---- for 1899 1904).

(9-1 (--ditto--- for 1905-1909).

7-8 (--ditto-- for 1910-1914).

6-5 (Annual average deaths due to ho-

micide, etc. per million for 1915-

19).

5-1 (-----ditto-- for 1920-1924).

See fourth column.

Adequate ﬁgures not available. But the immediate result or abolition was a con-

siderable increase and the increase wae much more pronos unccd in the Can-

tons which subse-

quently restore capital punishment than in those which did not. To some extent proves the de-

terrent effect.

--In New Zealand, after abolition in 194I death sentence was abolished in 1961 (except I. See R.C. Report, page 357, Table 35.

2. See R.C. Report, page 358, paragraph 65 and page 359, Table 36, column 3.

3, Figures taken from R.C. Report, pages 360-361, paragraph 71.

4. See R.C. Report, page 360.

5. See Crimes Act, 1961 (New Zealand), section 74 and 172.

paragraph 70-73, particularly 134 Country Scotland 1-2 . 2-3 (Average ofmur- (No executions took ders known to po-

place between 1928 lice for the period 1946). t errent Before abolition After abolition Remarks 5 (Murders known The execution which to the police for took place in is said to have and 1945. 1928 to 1944). _ The ﬁgures are for 2 ./--ditto-- for 1947) later years. But, as Glasgow only). 1: (Murders known against ' ' to the police for 2 (---ditto--- for 1948) stated that the 1945). crease in after 1945 followed a decrease number of crimes of violence which began before any execution taken ﬁgures may be garded as sive.

APPENDIX XVII Cases of cruel murder CRUEL MURDERS We may refer to a few cases of cruel murder. SUPREME COURT CASES (1) One Fahim, cruelly murdered Mrs. Nelson, wife of an American Missionary, at Handia on Varanasi-Allahabad highway. (The husband had gone to Allahabad to get re- paired a damaged tyre of his car, leaving behind his wife in the Car). The Allahabad High Court conﬁrmed the sentence of death. The Supreme Court refused leave to agpgal against the High Court's judgment dated 8th Oct. 1 65 .

(2) Unni, a naval rating conspired along with 4 others to burgle the safe of the Naval Base Supply Oﬁice at Cochin, and they decoyed Lt. Commander Mendanha from his house on the pretext that he was wanted at the Naval base. In a lonely place they caught hold of him, tied his hands and legs, gagged his mouth with sticking-plaster, and plugged his nostrils with cotton soaked in chloroform and deposited him in a shallow drain. Unni was sentenc- ed to death by the High Court of Kerala. The Supreme Court upheld the conviction and the sentence'.

(3) In a brutal murder, the accused killed a young girl by cutting her into pieces. The Sessions Judge, Srinagar, while ﬁnding him guilty of murder sentenced him to life I. See R.C. Report, pages 362-363, paragraphs 77, 78 and Table 4I(a).

2. The dates of abolition, restoration or last execution for countries in Europe and the Commonwealth are taken from RIC. Report, page 340, Table 12, and page 360.

3. Bombay Chornicle, dated 22-3-1966. 4- Times of India/Hindustan Standard, Dated 23-4-I966.

L35 imprisonment on the ground that the accused had become emaciated in the legs and was crawling. The High Court observed. that this was no ground for leniency in the cir- cumstances of the case, and enhanced the sentence to one of deathl.

(4) Wamanrao Kasture, a clerk, sprinkled kerosene on the person of a woman and set ﬁre, which resulted in the woman's death. Death sentence conﬁrmed by the Nagpur High Court" as the crime was an atrocious one.

(5) A student---Vijai Karan Singh, stabbed his Vice- Principal, piercing through his heart, as a revenge for the victim having sponsored action against the accused for using unfair means at the examination. Death sentence was conﬁrmed by the Allahabad High Court (Lucknow Bench''').

(6) Chinnaswami, a domestic servant murdered May- yapan, his creditor by enticing him to his quarters. Death sentence was conﬁrmed by the Punjab High Court, (Delhi Bench').

(7) Anti, appellant, mercilessly struck Shanker on his head by a Kodali (a pointed digging instrument like an axe). The death sentence passed by the Sessions Judge, Santhal Parganas, was conﬁrmed by the Patna High Court".

(8) The late Shri H. N. Sanyal, Solicitor-General of India, was strangled to death at night by a party of persons who entered his house at night, apparently for committing theft. The murder was a gruesome one. The death sen- tence was conﬁrmed by the High Court of Punjab (at Delhi) on 25th January, 1966.

(9) The recent sadistic murder tried at the trial known as "Bodies on the moors" may be refered to7:----

Sadism, sexual perversion and cruelty which motivated a young couple to the "cold blooded" killing of a girl of 10, a boy of 12 and youth of 17 and to bury their bodies on lonely moors led to their being given life sentences at the end of their trial yes- terday at Chester. The case known as "bodies on the moors" trial attracted reporters and psychologists from all parts of the Western world and took up more space in the British Press than any criminal case in recent years.

*1. Case in 'Hindustan' Times,'-New Delhi, dated 11th June, 1965, since reported as?Akbar Shah v. The State, (1965) 2 Cr. L.]. 771 (Jammu & Kashmir).

2. 'Nagpur Times' dated 23-7-1965.

3. 'National Herald,' dated 22-10-1965.

4. 'Patriot,' dated 5-11-1965.

5. 'Search Light,' Patna, dated 12-12-1965.

6. 'Hindustan Times,' 8th May, 1966 C _ 7., See also Calcutta Weekly Notes, (April, 1965), page 75, "Reporting rime '.

lijd The accused who were convicted were Ian Brady, a clerk of 28, and Myra Hindley, a shorthand typist aged 23, his girl friend who worked in the same office and lived together in the same house.

Evidence at the trial brought out that the couple had a library of books on murder' sadism and perversion, in- cluding the works of Marquis de Sade. Smith had, ac- cording to his statement, been at ﬁrst drawn in by them and had heard Brady boast of having killed many persons. Later when he witnessed Brady axing to death Evans who had been inveigled into the house, he broke down and ran to the police.

Other discoveries by the police included a tape record- ing of the frightened cries of a child identified as Lesley Ann Downey, 10, whom the accused admitted to having photographed in the nude but denied murder. The girl's body had been found burried on the moors at a spot a photograph of which was found in Brady's album. The pathetic pleadings of the child were heard by the court and the jury when the tape was played out during the trial as also the commands of Brady and Hindley to the girl.

The police also produced a diary kept by Brady in which there was the name of John Kilbride, 12, whose body also was found on the moors near the other burial. Other ﬁnds included a plan for disposal of bodies drawn up by Brady.

The contention of the prosecution was that Brady was a cold-blooded pervert who took pleasure in inflicting pain on helpless children and who killed for kicks. Hindley, it was brought out. had fallen under his spell and became a willing convert to his bestial inclinations.

A curious sidelight on the sensational Press in Britain was thrown by the evidence of Smith. He admitted that the News of the World had signed him on to give material for article on the murder after the accused were convicted. In the meanwhile they were giving a substantial weekly allowance.

APPENDIX XVIII CASES or APPEALS UNDER ARTICLE 134 AND 136 or THE CONSTI- TUTION RELEVANT TO THE SENTENCE or DEATH Cases of appeals to Supreme Court (I) (2) (3) (4) Pritam Sing}: v. Appeal under article The appellant was sentenced Appeal dismissed The State.' 136. to death on the charge of murder by the Sessions Judge, Ferozepur. The I. Pritam Singh V The State, (1950), S.C.R. 542: A.I.R. S.C. 6 F l Patanjali Shastri, Mahajan, B.K. Mukherjea and S.R..Das J].).I95O I 9 ( 32 Al 137 (3) Hzgh Court of Punjab up-

held the convfction, and conﬁrmed the sentence. In appeal, the Supreme Court found that the story of prosecution was supported by not less than ﬁve wit-

nesses, was not incredible, or improbable, and had impressed four assessors and the two lower courts.

Therefore. it would be against all prrciples ard precedents, if the Supreme Court were to constitute itself into "a third court of facts" and after reweigh-

ing the evidence, to come to its own conclusions.

The appeal was dismissed.

The court rejected the con-

tenticn of the counsel for the appellant that, once an appeal had been admitted oy spe:ial leave, the entire case was at large, and the appellant could contest all tne ﬁndings of facts and raise every point which could be raised in the High Court or trial court. It cited the observations of the Privy Counc:1(IZtra/Jim v. Rex, I914, A.C. 599, 6x5; ALR. 1914 P.C. 155) to the effect that the Privy Council had repeatedly tre-

atcd appl cation for leave to appeal and the appeal as being upon the same foot-

ings. Dziﬁerent standards Could not be adopted at two diﬁerent stages of the same case. The Supreme Court made the following observations regarding the scope of article 1362--

' On a careful exami-

nation ofarticle 136 along-

with the preceding article, it seems clear that the wide d ret'onary power with vvhih this Court is invested under it 's to be exercised sparrvgly ard in exceptional cases only, and as far as possible, a more or less uniform stan-

dard should be adopted in granting spec'al leave (I) (2) (3) in the wide range of mat-

ters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases whch come up lefore different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinfon can be la-'d down in the circumstances is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. The Pri-

vy Council have tried to lay down from time to time certain principles for granting special leave in criminal cases, which were reviewed by the Federal Court in Kapildeo v. The King (A.I.R. 37, I950 F.C. 8o : 51 Cr. L]. 1057).

It is sufficient for our pur-

pose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which some- times weighed with the Privy Council, need not weigh with us. yet some of those principles are useful as furnishng in many cases a sound basis for invoking the discre-

tion of this Court in grant-

ing special leave. Gene-

rally speaking, this Court willnot grant special leave, unless it is shown that exceptional and special cir- cumstances exist, that sub-

stantial and grave injustice has been done and that the case in question pre-

sents features of suﬁlcient gravity to warrant a re-

view of the decis'on ap-

pealed against. Since the present case does not in our opinion fulﬁl any of these conditions, we can-

not interfere with, the de-

cision of the High Court, and the appeal must be dismissed."

(4) 139

(I) (2) (3) (4) Lachhman Singh Appeal under article The appellants were tried Appeal dis- V. The State.' I3.J,(i)(C). for murder and sentenced allowed to transportation for l'fe.

The Punjab High Court upheld the convjct on and the sentence. Before the Supreme Court, the valve of the evidence as to the recovery of blood-stained clothes, at the instance of the appellants, was attack-

ed, and the inference to be drawn from the post-mor-

tern examination by the doctor (as to the time of the offence) was also pres-

sed. The Supreme Court, however, pointed out, that these points had been put before the lower courts, and did not prevail with the High Court and the Court of Session, and that it was not a function of the Supreme Court to re-assess the evidence and the argu-

ment on points of fact which did not prevail with the lower courts. The Su-

preme Court also did not ﬁnd sufﬁcient ground for interference.

Darshan Singh The appellant was convicted Appeal on a certi-- Appeal allowed:

v. State of Pun jab."

cate granted under article 132, as the case involved a substantial question of law to the interpretation of the Constitution (validity of the East-Punjab Cotton Cloth and Yarn Order, 1947 in so far as it dealt with the export and im-

port across the customs frontiers.

of an offence under the East--Punjab Cotton, etc., Order and sentenced to one year's rigorous impri-

sonment by the trying Magistrate. Appeal to the Court of Session was dis-

missed, but the sentence was reduced. A revision to the High Court was dis-

missed. On appeal to the Supreme Court, the appe-

llant did not succeed on the constitutional point.

But counsel for one of the appellants craved leave to bring to the notice of the Court an important point which had resulted in grave miscarriage of jus-

tice ; the courts below had relied on an admission al-

leged to have been made by the appellant that he and rehearing ordered.

I. Lachlmum Singh V. The State, (1952) S.C.R. 839; AI.R. I952 S.C. I67 (Fazl and Bose JJ.).

2. Darshan Singh v..S.tare of I.'um'ab (I953) S.C.R. _3I9 ; A.I"R., I953 S.C. 83, 135 paragraphs 20, 21 (Pataniali Shastri C. J.; B. K. Mukherjea, Chandrashekher Aiyer, Bose and Ghulam Hasan J].).

hr' (2) 140 (3) (4) Kalawati v.

Himachal Pra-

desh' .

I34 (I)(c>.

Appeal under and also on certiﬁ-

cate under 132:

article .

was present at the customs barriers at Wagha. But actually there was no such admission by the ap-

pellant. The Supreme Court considered this point, and found that the record cont ined no such admission. It, therefore, directed rehearing of the appeal by the Sessions Judge on the other evi-

dence ; after excluding the admission.

The appellant Kalawati and the appellant Ranjit Singh were tried for the murder of Bikram Singh, the bus-

band of Kalawati. The prosecution case was, that the two appellant had de-

veloped illicit intimacy with each other, and wished to get rid of Bikram Singh, because he was cruel in his behaviour to appellant Kalawati. Ranjit Singh was charged under Section 302, and Kalawati was charged under that sec-

tion read with section II4 of the Penal Code. The Sessions Judge found Ranjit Singh guilty and sentenced him to death;

he acquitted Kalawati of the offence under section 302, but found her guilty under section 201 as she had suppressed the evi-

dencc, screened Raniit Singh and given false in-

formation in respect of the murder. She was sen-

tenced to ﬁve years' ri-

gorous imprisonment. Both appealed to the Judicial Commissioner, and the State also appealed against the acquittal of Kalawati on the charge of murder.

The Judicial Commissioner allowed Kalawati's appeal and set aside her conviction under section 201, but al-

lowed the State's appeal Appeal regard-

ing Kalawati allowed in subs-

tance ; sen-

tence of Raniit Singh reduced.

1. Kalawati v. State of Himachal Pradesh, (19533 S.C.R. 546 ;

A.I.R. 1953 S. C. I31 (Pataniali ShastriC.J., B. K. Mukherjea, Chandrashekher Aiyer,Bosc and Ghulam Hasan ]])., (2) (3) (4) against her and convicted her of murder under sec-~ tion 302, read with section 114, and sentenced her to transportation for life.

Raniit Singh's appeal was dismissed.

He, however, granted :1 cer-

ﬁcate under article 132 as a question of interpre-

tation of article 20 (2) and (3) of the Consrtitution was involved. He also granted a certiﬁcate under article 134 (I)(cV,, on the ground that, since conﬁrmation of a sentence of death was generally made by a Bench of two Judges. it was not ﬁt and proper that the matter should rest with his own decision sitting sing-

lv.

The Supreme Court regard-

ed the grant of certiﬁcate under article 134 as not sound, and observed, that if there is only one Judicial Commissioner in a parti-

cular State, who is to conﬁrm the sentence of death, the procedure laid down must be followed, and the fact that there was not 21 Bench of two Judges was not an adequate ground for converting the Supreme Court into an ordinary Court of appeal. But the Supreme Court heard the appeal on merits.

The Supreme Court found the case not proved beyond doubt against Kalawati, and thought that the plot was ﬁnally executed with-

out her instigation, even though she might be aware of the intentions of Raniit Singh. The Court also hesitated to act upon her confession, in view of act certain weaknesses therein. However, the Court re-

garded her as guilty of the offence under section 142 (I) (2) (3) (4) 201, since, after the oc-

currence, she gave a false version of dacoity. "The border-line between abet-

ment of the offence and giving false information to screen the offender is rather thin in her case, but it is prudent to err on the safe side, and hold her guilty only of an offence under section 201, Penal Code, as the learned Sessions Judge did". The Court sen-

tenced her to three years' rigorous imprisonment under section 201. As re-

gards Ranjit Singh, the court dismissed his appeal on the merits, but substi-

tuted for the sentence of death the sentence of trans-

portation for life, having regard to the time that had lapsed between occurrence of the offence and the de-

cision of the Supreme Court, and also to the pro-

bable motive of prevention of cruelty to a helpless woman.

T ulsi Ram Appeal under Arti- The appellant was tried for Appeal Allowed. V. dc 134 (mu) murder, but acquitted by The State ' Additional Sessions Judge, Bhandra. The High Court at Nagpur reversed the acquittal, and convicted him of murder and senten-

ced him to death. On appeal, the Supreme Court considered, that the case against the accused had not been proved beyond reasonable doubt, and [ob-

served that in an appeal under section 417, while the appellate court had full power to review the whole case, it must start wth the realisation that an expe-

rienced judicial oﬁlcer, sitting with four Assessors had concluded that there was clearly reasonable doubt in respect of the guilt of the accused. The Supreme Court stated---

'It, therefore, requires 1, Tulsi Ram v. The State, A.I.R. 1954 S.C. I (Kania C. J.. Patanjali Shastri and S. 'R. Das 1].).

143

(I) (2) Muthuswami Article not quoted v. in the judgment.

State of A/Iadras. ' Sadhu Sbgh v.

State of P.E.P.S.U' Appeal under an 'c1e

136. (3) (4) good and sufﬁciently cogent reasons to overcome such reasonable doubt before the appellate courts come to a different conclusion.' After examining the evi-

dence, the Supreme Court acquitted the accused.

The appellant was convicted Appeal by the Court of Session of murder. He was sentenced to death. The High Court upheld the conviction, relying only on the con-

fession of the accused. The Supreme Court felt, that in the circumstances of the case, the confession should not be believed.

The High Court had relied upon the wealth of details in the confession as a safe-

guard of its truth, but the Supreme Court pointed out that, the main features of the story given in the confession, had not been tested. Further, the con-

fession was retracted, and should ordinarily have re-

quired corroboration, which was wanting in this case. The accused was acquitted.

In this case, a Divis-'on Bench Appeal of the High Court of Patiala had confirmed the sen-

tence of transportation of life passed against the appellant for murder. In the First Information Re-

port, the vers'on put forth was, that the gun of the accused had gone oﬁ" by accident and killed the deceased. It was only later that the case was altered into one of inten-

tional homicide. In view of th's special cir-

cumstance, which the ap-

pellate court had failed to appreciate the Supreme Court felt that it should interfere, as otherwise a failure of justice would be allowed.

allowed.

I. Mut/mswami v. State of Madras A.I.R. I954 S.C. 4 (Fazl Ali, Mahajan and Bose JJ.).

and Jagannath Dass JJ.).

2. Sadhu Sing]; v. State of Pepsu, A.I.R. I954 S.C. 271 Mahajan, B. I» 'lul<'b.eriee (I) (2) <3) (4) occasfosaed. The appel-

lant was held guilty of the offence under section 304-A, and the sentence reduced to imprisonment already undergone.

Nar Sing}: Appeal under Article This case is important onl§ Appeald'sm'ss€d- v. 134 (I)((). the decison that the ex- State of pression "case" under Uzmr Prade5h'_ Article I 34 (I)(.:) means the case of each individual person, so that a certiﬁcate can be granted in respect of one person and refused in respect of another. On the merits, the appeal against the conviction under section 302 read with sec-

tion I49 Indian Penal Code was dismissed.

Chamru Eudhzca Appeal under Article In this case, the Supreme Appeal allowed V. 136. Court altered the convic-- in part. Stage of tion of the accused under Madhya Pra- section 302 into one of a de5};2_ conviction under section 304 Indian Penal Code and altered the sentence of transportation for life into one of seven years' rigorous imprisonment, on the ground that the case fell within Exception IV to section 300.

Pandurang v. Appeal under Article Five persons, including the Appeal allowed State of 136. three appellants, were pro- as regards Hyderabad". secuted for the murder of can-victicn of ore one R. Eacl: was convicted appellant and and sentenced to death sentence of the under section 302. In the other two. appeal and in conﬁrmation proceeding in the High Court, there was difference of opinion among the two Judges .~ Ali Khan J. held that the conviction should be maintained, but the sentence should be "com-

muted " to imprisonment for life, while Deshpande J. held that all the accused should be acquitted. The matter was referred to a I."Nm' .S'z'7zgh v. State of Uttar Pradesh, (I955) S.C.R. 238 3 A.I.R. I954 S.C. 457 (B. K. Mukherjca, Bose and Ghularn Hasan ]J.).

2. Clzamru End/zzt~a V. State of Aladlzya Prades/z, A.I.R. I954 S.C. 652. (Mahafan C. J. and Bhagawati and Venkatarana Agyar 1].).

3. l'=\u(I'|rang -u. State of Hyderabad. (1955) r S.C.R. I083 A.I.R. I955 S.C. 216, (B. K. Mukhcriea, S. R. 1333 and Bose I ).

J .

145

_ __ ___ - 7. c . -7., ----«~---'------« ---- - (H (2) (3) (4)

---- ,_ tnird ju_ige---P. J. Reddy ].,---who adjudged all the ﬁve to be guilty under section 302, and considered that the death sentence of the three appellants should be maintained, and those of the two other should be commuted to transporta-

tion for life. In accord-

ance with the opinion of the third Judge, the sen-

tences suggested by him were maintained, as well as the conviction. The High Court refused certi-

ﬁcate for leave to appeal.

The Supreme Court grant-

ed special leave.

The Supreme Court observed, that ordinarily, it would not have inquired into ques-

tions of fact 3 but as three persons were sentenced to death on the opinion of the third judge, despite the opinion of the one Judge that the death sentence should not be imposed, and the opinion of the other Judge that the appel-

lant were not guilty and should be acquitted, the Supreme Court deemed it advisable to examine the evidence.

After examining the evidence, it held, that so far as appel-

iant Pandurang was con-

cerned, he was liable only under section 326, Indian Penal Code, and inference or common intention to cause death should not be made in his case.

Hence, the conviction was altered from one under sections 302 to 326 and the sentence was altered from death to imprisonment for ten years. As regards the other appellants, their convictions were maintain-

ed, but the sentence was reduced to transportation for life. The Supreme Court observed, that while it did not intend to fetter 11-122 Law.

ﬂ /1 airhander V. S tau 0 f Hyderabad'.

the discretion ol the Judges in the matter of sentence, yet, when the appellate Iudges, who agreed on the question of guilt, differed on that of sentence, it was usual not to impose the death penalty unless there are compelling reasons.

Appczl under Article The appellant was charged

136. with the murder of oneM and was convicted. This conviction was maintained by the High Court of Hy-

derabad on the facts of the case, which were very peculiar. The Supreme Court allowed his appeal and set aside the convic-

tion and sentence (The sen-

tence passed by the trial court is not stated in the iudgment).

In the opinion of the Supreme Court, the ill-will between the accused and the de-

ceased, the suspicious con-

duct of the accused, and the fact that thirteen days after the murder, he knew that M had been murdered, and also knew where the mur-

der had been committed and the body was hidden, were circumstances which could be said to point with equal suspicion at the other members of the ac-

eu:ed's family. The bro-

ther of the appellant, though challaned in this case, was absconding and could not be traced. If the brother had committed the murder, it was possible that the accused, the ap-

pellant, had derived his knowledge of the murder, etc., from the brother.

Soon after the arrest, the accused wanted to make a clean breast of everything, but the police waited six days before getting a con-

fession judicially recorded. The examination of the accused under section 342, Criminal Procedure Code, had also not been satis-

Appeal allowed.

'-an

1. Maxhauder v. State of Hyderabad, A.I.R. 1955, S.C. 792 (Bose, Iaun Nath7DTe's and Sinha ]].).

(I) (2) (3) (4) lact~'r}'. In View of all these facts, the appeal was allowed and the conviction and sentence set aside.

Re--trial was not ordered, since the appellant had been on his trial for over four and a half years.

Aher Raja I<}iima Appeal undei Article In this case the Sessions Appeal allowed, v. 136. Judge, differingwith the State of unanimous opinion of the Saurashtm'. assessors, acquitted the ap-

pellant of the murder of one Jetha, who was mar-

tied to a girl with whom the appellant was on intimate terms. The High Court of Saurashtra, in an appeal by the State, con-

victed the accused. The main question in the appeal before the Supreme Court was whether, in reversing the order of acquittal, the High Court had borne in mind the principles which the Supreme Court had tnunciated about inter-

ference with acquittal (under scCti0n 417, Criminal Procedure Code). The majority of the Supreme Court took the view, that it was not enough for the High Court to have taken a different \'l6W of the evi-

dence and that there must be xubstantial and compell-

ing reasons for holding that the trial court was wrong. Applying this test the majority found, that the circumstances did not disclose strong and com-

pelling reasons to set aside the acquittal and allowed the appeal.

'.'The majority regarded the confession of the accused as false and involuntary).

V enkataram Aiyar J. however, dissented, and in an ex-

haustive judgment review-

ing the Privy Council and Supreme Court decisions I.Ahcr Raja1\luma v. State of Sauraslzlra (1955) 2 S.C.R. 1285 'A.I.R. 1956 S.C. 217 (Bose and Chanderasekhar Aiyar J], Venkatarama Aiyar J disseriting).

148

(2) (3) (4) as to the scope of inter-

ference in criminal appeals, expressed the view that the doctrine of compelling rea-

sons had no iustiﬁcation for its existence ; that the phrase was undeﬁned, and was dangerous, because it related to the apprecia-

tion of evidence.

It put a judgment of acquittal (however recorded\, "in a position of vantage", which the law did not grant to it, and such a Situation must result in great mis-

chief if the doctrine was to be regarded as imposing a restriction on the powers of court. Once that doctrine is kept apart, there was no ground for interference in this case with the ﬁnding of the High Court (Pritam Singh's case, 1950 S.C. I69 cited). The law did not provide for a further appeal on the facts against the order of reversal, because the present appeal was not under article 132 or article :34 (x)(a) (b), but was under Article 136. Even on the merits, the decision of the High Court was correct.

Appeal was allowed by the majority, and conviction set aside.

The facts are not important.

The doctrine of "strong and compelling reasons"

regarding interference by the High Court in acquittal is followed in this case, and previous cases cited.

Appeal mi in Article

136. Sn 'on v. Sum .1 aiuthan.' In ih's case, the appellant was convicted by the Presidency Magistrate, Calcuttta of an offence under section 411, Indian Penal Code and sentenced to imprison-

ment for two years. His Appeal under article Hﬂiﬂh I34 (I)(c) and 136.

7. Std: of Bengal'.

Appeal of appel-

lant Surjan ac-

cepted in part namely, convic-

tion under sec-

tion 304 altered into conviction under section 323- Appeal sed.

Dismis-

r. Sm-jan v. State of Rajasthan A.I.R. 1956 S.C., 425 (Bose and Iagannath Dass 11-)-

2. Haripada 'v. State of West Bengal (I956) S.C.R. 639 5 A.I.R. Blugwati, Imam and Govinda Menon ]J.).

1956 S.C., 757.

(1) (2) <3) (4) appeal to the High Court was dismissed by the High Court at Calcutta, but the Calcutta High Court grant-

ed a certiﬁcate for leave to appeal under Article 134

(r)(c) on the ground that it felt that there had not been such a full and fair trial as ought to have been held. The Supreme Court regarded such a reason for the grant of the certiﬁcate as unsound. The High Court had noted, that the question involved was one of fact, and therefore in the opinion of the Supreme Court, there could not be any justiﬁcation for grant-

ing the certiﬁcate and converting the Supreme Court into a court of appeal on question of facts. For remedying a gross miscar-

riage of justice or depar-

ture from a legal procedure vitiating the whole trial, the Supreme Court would certainly interfere, but the High Court could not ar-

rogate that function to itself and pass on to the Supreme Court a matter purely involving a question of fact. On the facts of the case, the Supreme Court found no reason for interference.

Bhaguan Das Appeal under article The appellants (along with the Appealallowcd. vs, State of 138, daughter of one of the ap- Rajasthan)2. pellants) were tried for murder under Section 302, Indian Penal Code but were acquitted by the Sessions Judge, Ganganagar. The High Court of Rajasthan, in appeal, reversed the order of acquittal ofthe appellants and convicted them under section 302 read with sec-

tion 34 Indian Penal Code and sentenced them to transportation for life.

This order of the High Court of Rajasthan was appealed on two grounds, (2') that there was no 'evidence against the appellants to justify con-

r. Ofcourse,itis impossible by a precise formula toindicate the limits of High Court': discretion Balm vs. Szaze of U. P. (1966) 2 S.C. J. 287, 291.

) 2. Bhaguran Das v. State of Rajaszkan A.I.R. 1957 S.C., 589. (Bhagwati and Kaplr JJ- -

(I) 150 (3) viction, and (ii) that there were no "compelling"

reasons for reversal of the acquittal.

As regards tne first, the Court observed, that while the Supreme Court would not interfere with the ﬁndings of the High Court merely because the conclusions of the Supreme Court on the evidence differed with those of the High Court, yet where the evidence was such that no tribunal could legitimately infer from it that the accused was guilty, the Supreme Court would set aside the conviction.

(Stephen Seneviratne Vs. The King, A.I.R. I936 Privy Council 289, 291 followed).

In this case, the evidence was of such quality that no legitimate inference of guilt could properly be drawn. There were certain contradictions in the state- ment of important prosc-

cution witnesses. Again, dying declarations stated to have been made by the deceased were made to witnesses whose evidence suffered from material eon-

tradictions. Ordinarily, a dying decaration of this kind would be insuﬂieient for sustaining conviction on a charge of murder.

Next, the High Court had disbelieved the evidence of the doctor, saying that his opinion was not in con-

formity with the books in medical jurisprudence, but this was not a satis-

factory way of disposing of evidence unless the pos-

sages from the books are put to the witness (Sunder Lal vs. State of Madhya Praduh, A.I.R. I954 S.C. 28 followed).

An acquittal should not be set aside in the absence of substantial and compelling reasons. The judgment of (4) Appeal under article

136. jfumman vs. The Stat: of Punjab'.

I._7mnuan v. The State of Punjab A.l.R. Inn: and Govinds Manon JJ.).

the High Court did not dis-

close any such reason for interference with the find-

ings of the trial court. The appeal was allowed and the accused acquitted.

The appellants were convic-

ted by the Additional Ses-

sions Judge, Amritsar, for murder and sentenced to death. The convictions were conﬁrmed and the sentence of death also con-

ﬁrmed by the High Court oi Punjab. On appeal to the Supreme Court, the Supreme Court, while stat-

ing that in an appeal under special leave it was ordi-

narily bound by the ﬁnding of fact arrived at by the High Court, proceeded to hear the appeal on evi-

dence, because the High Court had not dealt with the appeal as it should have, and did not seem to have exercised its independent judgment on the material facts. It pointed out, that in proceedings for con-

ﬁrmation under section 374 the High Court had to satisfy itself that the case had been proved beyond reasonable doubt. ', In fact, the proceedings before the High Court are a re-apprai-

sal or reassessment of the entire facts and law, in order that the High Court should be satisﬁed on the materials about the guilt or innocence of the "accus-

ed person." The High Court should, therefore, come to an independent conclusion of its own on the material, it could be assisted by the opinion expressed by the Sessions Judge.

After going into the evi-

dence, the Supreme Court '~--....._ Appeal allowed by altering the conviction one for lesser offence.

s.c. 469, 471. (Jngsnsth D.» _ 152 (I) (2) (3) (4) set aside the conviction and sentence for murder, and altered the conviction into one under section 304 (ﬁrst part) Indian Penal Code.

Sarwan Singh Appeal under article The appellants were convicted Appeal allowed. Vs. State of 136. of murder and sentenced to Punjab.' death. They alongwith the approver were stated to have murdered one Gurdev Singh in village Sohian, Police Station Jagraon.

The High Court of Punjab maintained the conviction, and conﬁrmed the sen-

tence. The Supreme Court in appeal stated, that ordinarily it woud not interfere with concurrent ﬁndings of fact when the appeal was by special leave, but in this case it felt bound to interfere because the judgment of the High Court suﬁered from a serious in-

ﬁrmity in that the Judges, while dealing with the evi-

dence of the approver, had not addressed themselves to the question whether the approver was a reliable wit-

ness or not. In the opinion of the Supreme Court, the evidence of the apprever in this case was so thoroughly dis-

crepant that it was diﬂicult to resist the conclusion that he was wholly un- reliable. The appellants were acquitted.

State of Delhi Appeal under article The appellant was convicted Appeal dismissed. v. Shri Ram 136. by the trial court of an Lohia'. offence under section 5(4) of the Indian Oﬂicial Sec-

rets Act. Appeal against the conviction and sen-

tence was dismissed by the Additional Sessions Judge,

1. Sarwan Singh v. State of Punjab (r957) S.C.R. 953 ' A.I.R. 9 S.C. 6 . (jagannath Das, B.P. Sinha and Gaiendragadkar JJ). 3 I 57 37

2. Sick of Delhi v. Shri Ram Lohia A.I.R. I960 S.C. 490.

153

(1) (2) (3) (4) Delhi, but the High Court of Punjab, in re-visz'on, ac- quitted him. The State appealed to the Supreme Court. The High Court had acquitted him on the ground that one important prosecution witness was to be looked upon as an ac-

complice, and that there was no other evidence against the appellant. On the facts of the case, the Supreme Court regarded that person as utterly un- trustworthy, and dismissed the appeal.

,K.Kunhahammad Appeal under article The appellant was convicted Appuldiorniucd. v. State of 136. of a criminal conspiracy Madras.' to misappropriate the pro-

perty of one co-operative society; and other connec-

ted offences. The convic-

tion was under section 409 and section 477A, Indian Penal Code. The High Court of Madras accepted the appeal regarding sec-

tion 477A and conﬁrmed the conviction under section

409. The Supreme Court observed that, the ﬁnding of the High Court that the charge under section 409 had been proved beyond reasonable doubt, was a ﬁnding of fact, and, in this conclusion, the High Court had agreed with the view taken by the trial Judge. This ﬁnding could not be challenged before the Supreme Court in the present appeal. (Certain procedural irregularities were also discussed, but it was held that the ac-

cused had not been preju-

diced.).

Shambu V. State Appeal under article Certain persons, including the Appeal dismissed. of Bihar.' 136. appellant were convicted by the Additional Judicial Commissioner, Chhota Nag-

pur, for the offence under section 302 and also for the offence under section 302 read with sections I49 and

1.K.Kunhahammad v. State of Madras, A.I.R. I960 SC. 661, 663 (Gajendragadkar, Sarkar and Subba Rao. ]J.).

2. Shambhu v. State of Bihar, A.I.R. 1960, S.C. 725, 727, paragraph 4 (Gajendragadkay, Subba Rao and Shah ]].).

154 (1)

<2) (3) 148, etc., Indian Penal Code. For the offence under section 302, appel-

lant S was sentenced to transportation for life.

The other accused were convicted under section 326 read with sections 149 and 148, Indian Penal Code and sentenced to rigorous imprisonment for six years (four years in the ease of some of the appellants).

The High Court appa-

rently conﬁrmed the con-

victions and the sentences.

The Supreme Court re-

fused to interfere on ques-

tions of fact based on sp-

preciation oi evidence, ob-

serving: "It is the settled practice of this Court that unlet: the trial is vitiated by an illegality or irregu-

larity of procedure or the trial is held in a manner violative of the principle:

of natural justice resulting in an unfair trial, or unless the trial had resulted in gran miscarriage of justice, this Court in a criminnl appeal does not normally enter upon a review of the ' e on which the con-

clusion of the Courts below is founded."

It had been argued, that the conviction under sec-

tion 326 read with section 149 was bad, as no mem-

ber had been proved to have caused "grievous hurt"

to any of the victims. It was held, that the convic-

tion under section 326 read with section 149 was valid;

the common object of the unlawful assembly, as found by the Courts below, was to cause grievous hurt.

and death was caused by one of the members of the Issembly. For causing the death, the other members were not found to be res-

ponsible, but the convic-

tion for the offence of cutting grievous hurt "in prosecution of the common (4) I55 (1) (2) (33 (4) object" was maintainable as the offence of murder was in its nature an ag-

gravated form 01 grievous hurt.

Appeal was dismissed.

Aunt Lagu V. Appeal under article The appellant was tried for Sta!oofBom- 136. the murder of a woman .' named Laxmibai Karve, the charge being that on or about the night between 12th November and 13th November, 1956, either at Poona or in railway jour-

ney between Poona and Bombay, he administered to her some unrecognized poison or drug which would act as poison, with the intention of causing her death, and that caused her death. He was sentenced to death by Shri V. N. Naik, Sessions Judge, Poona under section 302, Indian Penal Code. The convic-

tion was maintained and the sentence conﬁrmed by the Bombay High Court ( C. Shah J. and V. S. esaiJ.). Themainpoint was, whether the death was caused by poison or by disease, and (if by poison) whether the ac-

cused had administered the poison.

The Supreme Court (S. K. Das and Hidayatulla 1].) observed, that ordinary, it was not the practice of the Supreme Court to re-

examine the ﬁndings of feet reached by the High Court, particularly in a case where there was a concurrence of opinion between the two courts, also. But, here the case was based entirely on circumstantial evidence, and there was no direct evidence that the appellant administered poison. No poison had, in fact, been detected by the doctor who performed the post-mortm I. Anaulqu 7. State of Bombay, (1960): S.C.R. 460; A.I.R. 1960 S. C. son, (3.3 Do Saba and Hidlyltulla 1].).

(I) 156 (3) examination or by the Che-

mical Analyser. The in-

ference of guilt having been drawn on an examination of a mass of evidence dur-

ing which subsidiary ﬁnd-

ings were given by the two courts below, the Supreme Court, in view of the extra-

ordinary nature of the case felt it necessary to satisfy itself whether each conclu-

s-' on on the separate aspects of the case was supported by evidence and was just and proper.

According to the majority of the Supreme Court, the death had not occurred from diabetic coma, but was due to some unrecog-

nized poison or drug acting as a poison, and that it was the accused who com-

mitted murder by adminis-

tering such substance; the Court considered the cir-

cumstantial evidence so de-

cisive, that the Court could unhesitatingly hold that the death was as a result of adm-'nistrat'0n of poison and that the poison must have been administreed by the accused. The Court pointed out that there was no hard and fast rule that the poison must be isolated. Sarkar J. how-

ever, dissented as, in his opinion, the prosecution had failed to prove the guilt of the appellant.

The appeal was dismissed and the sentence of death was maintained, as the Supreme Court ob-

served that that was the only sentence that couldbe imposed for this planned and cold-blooded murder for gain. (The appellant in this case had, according to the prosecution case, committed the murder to get hold of the property of the deceased. The ap-

pellant was her personal physician.).

(4) 157

(I) (2) (3) (4) Sanwatsingh v. Appeal under Article This case is important only Appeal dismissed. State of Ra;as- 136. for its discussion of the that} principles on which the High Court should act in hearing appeals against acquittal. The judgment notes that the expression "substantialand compelling reasons" used in earlier decisions of the Supreme Court had caused con-

siderable diﬂiculties to High Courts. Those words, it was stated, were not intended to add a con-

dition to section 417 of the Criminal Procedure Code, but only to convey the idea that the appellate court must not only hear in mind the principles laid down by the Privy Council, but also give its clear rea-

sons for coming to the conclusion that the acquit-

tal was wrong. The Sup-

reme Court pointed out, that the appellate court had full power to review the evidence upon which the acquittal was founded, that the principles laid down in Shea Swamp': case (64 LA. 398; A.I.R. 1934 P.C. 227\ were a correct guide, and that the different phra-

ses used in the decisions of the Supreme Court, like sunstantial and compelling reasons"or goodandsufﬁ-

ciently cogent reasons" or "strong reasons" were not intended to curtail the power of the appellate court to review the evidence and come to its own conclu-

sion, but to state that in doing so the appellate court should not only consider the matters on record hav-

ing a bearing on the ques-

tions of fact and the rea-

sons given by the court in appeal, but should also express those reasons in its own judgment in which it holds that the acquittal was not justified.

The appeal was dismissed.

1. Samoa: Siugh v. Stale of Rajasthan, (r961) 3 S C_3.R. no; A.I.R. I961 S.C. 751 (Imam, Subbo. Rao and Raghubar Dayal J].).

(1) (2) '3) (4) 5""; S¢'p;gh_. V The following observations as (.omd,) to the scope of interference under article 136 are also interesting:--

"Article 136 of the Consti-

tution confers awide discretionary power on

-'his court to entertain appeals in suitable cases not otherwise provided for by the Constitution.

It is implicit in the re-

serve power that it can-

not be exhaustively de-

ﬁned, but decided cases do not permit interfer-

ence unless "by disre-

gard to the forms of legal process or some violation of the princi-

ples of natural justice or otherwise, substantial and grave injustice has been done." Though article 136 is couched in widest terms, the practice of this Court is not to interfere on questions of fact ex-

cept in exceptional cases when the finding is such that it shocks the con-

science of the court. In the present case, the High Court has not con-

travened any of the prin-

ciples laid down in Shea Swarup's case, 64 Ind.

App. 398; [A.I.R. r934 P.C. 227(2) ] and has also given reasons which led it to hold that the acquittal was not iusti-

ﬁed. In the circumstan-

ces, no case has been made out for our not accepting the said ﬁnd-

ings."

On the merits of the case the Supreme Court saw no rea-

son to interfere.

K. M. Nanavati Appeal under article The appellant was charged Appeal dismissed. v, State of 136. under section 302 as well Maharashtra.' as under section 304, Part I, Indian Penal Code for the murder of the para-

mour of his wife. The Sessions Judge, Greater I.K. M. Nanavati v. State of Maharashtra A.I.R. I962 S-C. 605 (S. K. Das, Subba R30 and Raghubar Dayal ]].).

K. M. Nanavati

--(comd.) Bombay, sitting with a special jury, heard the case. The jury brought in a Verdict of not being guilty, by a majority of eight to one, but the Sessions Judge did not agree with the ver-

dict and submitted the case under section 307, Criminal Procedure Code, to the High Court of Bombay.

In the High Court, the reference was heard by Shelat and Naik 1]. She-

lat J. held that, there were misdirections to the jury, reviewed the evidence and came to the conclusion that the accused was guilty of murder. Alternatively, he expressed the View that the verdict of the jury was perverse and unreasonable, and contrary to the weight of evidence. Naik J., in a separate judgment, took the view that no reasonable body of persons could have come to the conclusion ar-

rived at by the jury. The appellant was sentenced by the High Court to imprison-

ment for life under sec-

tion 302.

The Supreme Court, in ap-

peal, discussed in detail the scope of section 307, Cri-

minal Procedure Code, and after examining the evi-

dence, upheld the convic-

tion and sentence, passed by the High Court. In the course of judgment, observed that it found force in the argument of the Attorney General, that if under section 307, Criminal Procedure Code, the High Court could consider the evidence afresh and come to its conclusions, in view of the misdirections by the trial Judge to the jury, the Supreme Court should not, in the exercise of its dis-

cretionary jurisdiction, un- der article 136, interfere with the ﬁndings of the High Court. But since the Supreme Court had heard the counsel at great length, it proposed to discuss the evidence.

(4) 160

(1) (2) (3) (4) Harbam Singh Appeal under article Six persons including the Appeal accepted v. State of 136. appellants, 'were tried by as regards one Pmjab} the Additional Sessions person, and dis-

Judge, Ferozepur, on scve- missed as re-

ral charges in connection gards the other-. with death by homicidal injuries of two brothers.

They were all acquitted, but on appeal by the State, the High Court of Punjab set aside the orders of ac-

quittal in respect of the appellants and convicted them under section 302.

The appellants ﬁled the present appeal after obtain- ing special leave from the Supreme Court. One of the grounds of appeal was, that the High Court had not sufficient reason for interfering with the orders of acquittal; that the High Court had mis-read the judgment of the Additional Sessions Judge and attri-

buted to him statements not found in his judgment, etc. The Supreme Court pointed out, that in appeals against acquittal, the Court of Appeal must examine the evidence with particular care, and must also exa-

mine the reasons on which the acquittal vxas based, and should interfere only when the view taken by the acquitting Judge is clearly unreasonable. In earlier cases of the Supreme Court, the words "com-

pellng reasons" had been used, and this had caused diﬂiculty to High Courts occasionally. In later years, the Supreme Court had avoided emphasis on "com-

pelling reasons", but, nevertheless, adhered to the view, that ﬁalefore interfering inana pe ,against an ac-

quittal? the High Court must examine not only questions of law and fact in all their aspects, but also reasons which impelled the lower court to acquit the accused. If the Ap-

pellate Court came to the I. Harbaus Singh v. State of Punjab, A.I.R. 1962 S.C. 439, 44.2, paragraphs 10, II- and 12 (Gaiendragadkar, Sarkar, Wanchoo and Das Gupta J].).

161

(I) (2) (3) (4) H arbans S ingh

---contd.

12-122 Law.

conclusion that the view taken by the lower court was clearly unreasonable, that itself was a compelling reason for interference.

If the High Court has thus approached the matter and applied the correct prin-

ciple, the Supreme Court will not ordinarily embark upon a re-appraisal of the evidence to ascertain whe-

ther the High Court was right in its mew of evidence.

But if the judgment of the High Court, while indicat-

ing the conclusion of the High Court that the vew taken by the trial court was unreasonable, does not disclose a careful exami-

nation of the evidence. or if the High Court has erred on a question of law, or obviously mis-read the evi-

dence, or mis-read the judgment of the trial court, the Supreme Court was bound to appraise the evi-

dence for itself and to examine the reasons on which the lower court ba-

sed the acquittal and then to decide whether the High Court's conclusion (about the lower c0urt's View be-

ing unreasona le) is cor-

rect. In the present case, the judgment of the High Court did not contain much discussion of the evidence and the judgment also re-

vealed that the Judges of the High Court were under some misapprehension in thinking that the Addi-

tional Sessions Judge has held that the accused Bagh Singh was not mentioned as a witness in the inquest report. The Supreme Court therefore examined the ev€dence in detail. It also pointed out that the View taken by the Ses-

sicns Judge, that a dying declaration m.€l1tl0n"1'g as many as six accused per-

sons could not support a conviction without corro-

boration, was wrong. The 162 (I) (2) (3) (4) Harbans Singh trial Judge, no doubt, had.

----contd, followed an earlier decision of the Supreme Court (Ram Nath v. State of Madhya Pradesh, A.I.R. I953, S.C. 420, 423) which observed that it was not safe to convict an accused per-

son merely on the evidence furnished by a dying dec-

laration without further cor- roboration. But in a later case (Khushal Rao v. State of Bombay, (I958) S.C.R. 552, 568, A.I.R. I958, S.C. 22, 28, 29), it was held that there was no rule of law that a dying delcaration could not from the sole basis of conviction; each case must depend on its own facts.

On a consideration of the evidence, the Supreme Court was satisﬁed that the conclusion of the High Court regarding appellant Harbans Singh was correct.

But as regards appellant Major Singh, the High Court was wrong in think-

ing that he gave any of the fatal blows. The evi-

dence left scope for think-

ing that the dying declara-

tion had either made a mis-

take about Major Singh, or had wrongly implicated him. Therefore, it could not be said that the view taken by the trial judge as regards Major Singh was clearly unreasonable. Ap-

peal of Major Singh was accepted, and he was ac-

quitted. Appeal of Har-

bans Singh was dism"ssed.

Tara Chand v. Appeal treated as The appellant was conv:'cted Appeal dismissed State of Ma- under article I34 of the oﬂence of culpzble by majority. harashtra} (I)(a\. homicide not arnountir. g to murder by the Sess'ons Judge, Dhulia. He had killed his wife by setting Ere to i'er clothes (There were quarrels between the parties). The Sessons Judge had convicted him

1. Tara Chand v. State of Mallard:/ztra (1962) 2 S.C.R. 775; A.I.R. I962 S.C. I30 (Kapur, Subba Rao and LC. Shah ]J., Raghubar Dayal and Hidayatulla JJ. dissenting) (I) Yam Chumd V. State of Illa/1t1rasi1lra----C0ntd.

(2) 163 (3)

under Section 299, Indian Penal Code, and sentenced him under section 304, Part I, to three years' rigo-

rous imprisonment. On ap-

peal to the High Court by the State, the High Court of Bombay convicted him under Section 302, Indian Penal Code, and sentenced him to death. The appel-

lant applied for a certiﬁcate to appeal under article 123 (I) (c). The certiﬁcate was refused. The Supreme Court gave special leave under article 136. After the hearing of the appeal, the Supreme Court, in its judgment, examined in detail the question whe-

ther he had a right of appeal under article 134 (I)(a), and held that the word "acquittal" in that clause covered a case where the High Court, on appeal, had reversed the decision of the trial court and con-

victed the accused of mur-

der (instead of culpable homicide not amounting to murder). Acquittal" was not conﬁned to complete acquittal; it meant acquit-

tal of the oﬁence charged (Kishan Singh v. Emp., 55 Indian Appeals 390; A.I.R. 1928 P.C. 254, cited).

The argument of the appel-

lant, that the deceased had committed suicide, was not accepted by the Supreme Court. There was no evi-

dence on the record which could detract from the ﬁndings fo the High Court or the trial court, regarding the correctness of the dy-

ing declaration in which the deceased had charged the appellant.

Raghubar Dayal and Hidaya-

tzilla ]J., however, dis-

sented from the View that the conviction under sec-

tion 302 should be main-

tained; in their opinion, in an appeal under article 134 (4) (1) Tara Chmd V. State of MaharasIztra--cont:.

(2) (3)

(i)(tz), the Supreme Court must assess afresh the value of the evidence on record, and should not follow the practice of the Supreme Court under article 136 not to interfere with concur-

rent ﬁnding of the fact, in the absence of special cir-

cumstances. They had doubt about the truth of the dying declarations and took the View that the con-

viction of the appellant on the basis of that declara-

tion should not be main-

tained.

Appeal was dismissed accord-

ing to the majority judg-

ment.

Rama Shanker V. Appeal under aricle The appellants were convic-

State of West Bengal.' I34(I)(c>.

ted by the Extra Additional Judge, Howrah of offences under section 302 read with section 148 and 149, Indian Penal Code, and sentenced to death. The Sessions Judge had accepted the unanimous verdict given by the jury. The High Court of Calcutta, in pro-

ceedings for conﬁrmation of the death sentence and in the appeal ﬁled by the appellants, held, that the verdict of the jury was viti-

ated because of certain mis-

directions by the Sessions Judge. After an elaborate examination of the evi-

dence, it found some of the appellants guilty of otfences under section 302 read with section 134, Indian Penal Code and conﬁrmed the sentences of death.

On an appeal to the Supreme Court, the Supreme Court, after 'reviewing the evi-

dence, maintained the con-

viction. As regards the sentence, it observed, that the appellants had forcibly entered the house and kil-

led two persons and as-

saulted members of the (4) Appeal dismissed.

I. Rama Shanker v. State of Das Gupta and Shah JJ.).

West Bengal, A.I.R. 1962 Supreme Court 1239. (Wanchoo, 165 (I) (2) (3) (4) Rama S/zan/ear V. State of family. The assault was ll.'/est Ba7zgaZ--Contd. pre-conceived and initiated with deliberation, to slau-

ghter a defenceless woman and her young son. Inno-

cent persons who inter-

xened, were also killed mer-

cilessly and, therefore, this was pre--eminently 21 case for the death sentence.

The Supreme Court discus-

sed in detail the scope of the High Courts' powers in proceedings for com ﬁrniation and held (follow~ ing Abdul Rahim v. Emp.

73 LA. 77; A.I.R. 1946 PC. 82) that the High Court was not bound to order a retrial.

(The Supreme Court pointed out that the powers of the High Court under sections 374 and 376 Criminal Pro-

cedure Code werc Very Wide and the High Court could arrive at its own con-

clusion after reconsideraa tion ofthe evidence or order re-trial; the matter was in the discretion, of the High Court).

R.zr.v_,fiL'oz'ng/2 .--\rti<.l;:_i~trel'erred In this case. the Supreme Appeal allowed. State of Pwz_7'aZ7.' to. Court held that the charge framed against the appel-

lant under section 302, Indian Penal Code, had not been established beyond a reaszmable doubt, and so the appellant was acquit-

ted.

Rant./zatar V. Article of the cons- The appellant stated that he Appeal allowed. State of ALP. 2 tit1itionnotrel'eri'-- had a dream in which the ed to in the iudg-- deceased told him that the rnent. murder of the deceased was committed by X. Infor-

mazimz was given by the appellant, which led to recovery of the body. The appellant was convicted of murder. The High Court refused to refer to the dream.

1. Ran/it Sing/1 v. State of Punjab, (CA. No. 31, 1963)--(1963)--S. C. N. Item 160, April 25, I963 (Gajendragadkar, Wanchoo and Das Gupta IL).

2. Ramaotar V. State of M.P.,'(Cr. App. 149 of 1962) Oct. 30, I963 (1963) S. C. N. Vol. 5, Item 316. (Das Gupta and Dayal 1].).

(I) 166 (3) (4) Rama0ta7 v. State of M.P.--contd.

The Supreme Court observed, that the prosecution ver-

sion that the accused led the party of the villagers to the place in the river where the body was found, was linked up with the other part of the prosecu-

tion story about the appel-

lant having spoken about the dream. When that story was reiected, the evi-

dence that the accused led the party to the particular place in the river was also considerably weakened.

Taking into account all the circumstances, the Supreme Court was of the opinion that though it might be true that the accused was the first to notice the body lying in the river', it had not been proved that he led the party to that par-

ticular place.

Appellant was acquitted.

APPENDIX XIX SUMMARY or CAPITAL STATUTES 1N THE 18TH CENTURY IN ENGLAND In the 18th century in England the important capital offences were these1:--

(1) High Treason Treason in all its manifestations was a capital offence under the Act of 1351.2 An Act of 17963 incorporated seve-

ral provisions inserted in the meantime by enactments orders passed between 1399 and 1547.

An Act of 17034 provided, that if any officer or soldier out of England or upon the sea were to correspond with any rebel or enemy or give them advice or intelligence by let- ters, messages, signs or otherwise or to enter into any cor- respondence with them without authority so to do, he shall be guilty of treason. (By the annual Acts on mutiny and desertion, olfenders found guilty of these offences were to suffer death or such other punishment as the court martial should impose).

By a statute of 1792? which was passed as an emergency measure, it was high treason to sell, supply or deliver to or for the use of the French Convention or the armies in their employ, during the war, any arms, etc., bank notes or pro- visions without a licence from the Privy Council or to buy land, etc., in France, etc. (2) Offences against the protestant succession Certain offences against the protestant succession were capital. Thus_ one statute punished a person who endea- voured to Qleprive or hinder any person who was next in succession to the Crown according to the Act of Settlement from succeeding to the Crown, etc.5 A person maliciously, etc., maintaining and aﬁirming that any other person had any right or title to the Crown otherwise than according to the Act of Settlement, was punishable with death.7

1. Material contained in Radzinowicz, History of English Criminal Law 1948), Vol. 1, pages 611-659, has been mainly used in preparing this sum- mary.

2. Treason Act, 1351 (25 Edw. 3 Statute 5, c. 2).

3. Treason Act, 1796 (36 Geo. 3 c. 7).

4. Mutiny Desertion Act, 1703 (2 and 3 Anne. c. 20).

5. Correspondence with Enemies Act, 1792 (33 Geo. 3 c. 27).

6. Criminal Procedure Evidence, etc., Act, 1702 (1 Anne. Statute, 2 c. 17) section 3.

1:9

7. Security of Her Majesty's Person Act, 1707 (6 Anne. c. 7), section 1 167 168 Persons holding correspondence in person, by letters, messages or otherwise with the pretender} and persons holding such correspondence, etc., with a son of the pre- tender'-' were punishable with death. All such acts were regarded as high treason.

(3) Offences against the protestant establishment Several statutes punished with death persons who, by writing or teaching, maintained the spiritual authority or jurisdiction of a foreign prince, or committed similar other Acts."-4-5-5 Several other statutes supplemented or elaborated the Acts mentioned above?-3-"

(4) Desertion from the armed forces Desertion from the King's armies, whether by land or sea, was made a felony by several statutes. 1° 1' 12 13 14 In 1936, an Act was passed which had the effect of imposing capital punishment on any subject of Great Bri-

tain who enlisted or entered himself to go beyond the seas to serve any foreign prince, State or potentate as a Soldier without the King's consent."

Under an Act of 1736,16 as clariﬁed by foreign Enlistment Act," taking or accepting military commission or entering the military service of the French King without King's consent was similarly punishable.

Going or embarking to go to France, etc., during the war was a capital offence."

1. Correspondence with James the Pretender Act, 1700 (13 and 14 Williams 3 c. 3).

2. Treason Act, 1744 (17 Geo. 2 c. 39).

3. Act of Supremacy, 1558 (I Eliz. c. 1), partially superseded by Supre- macy of the Crown Act, 1562 (5 Eliz. c. 1).

4. Sea of Rome Act, 1570 (13 Eliz. c. 2).

5. Religion Act, 1581 (23 Eliz. c. I).

6. Popish Recusants Act, 1605 (3 Jac. I c. 4).

7. Jesuits, etc., Act, 1584 (27 Eliz. c. 2).

8. Popish Recusants Act, 1605 (3 Jac. 1 c. 4). 9, Roman Catholic Relief Act, 1791 (31 Geo. 3 c. 32).

10. Soldiers Act, 1439 (18 Hen. 6 c. 19).

11. Soldiers Act, 1487 (7 Hen. 7 c. 1). I2. Soldiers Act, 1511 (3 Hen, 8 c. 5).

13. Maintenance of the Navy Act, 1562 (5 Eliz. c. 5).

14. Military Service Act, I 557 (4 and 5 Phillips and Mary c. 3).

15. Foreign Enlistment Act, 1736 (9 Geo. 2 c. 30). I6. Foreign Enlistment Act, 1736 (9 Geo. 2 c. 30). I7, Foreign Enlistment Act, 1756 (29 Geo. 2c. 11).

18. Residents in France during the War Act, 1798 (38 Geo. 3c. 79).

169

Many acts consisting in seducing others from their alle:

giance and obedience to the Crown were capital offences.

Persons rescuing, etc, Napoleon Buonaparte were punishable with death."

An act passed as an emergency measure after the mutiny at the Nore in 1797," but continually prolonged and ultimate- ly made permanent/' punished as a capital offence. A person maliciously and advisedly endeavouring to seduce any person in His Majesty's force by sea or land from his or their duty and allegiance to His Majesty, or to incite or stir up such persons to commit any act of mutiny, or to commit any traitorous or mutinous practice whatsoever.

Remaining in communication with the crews of ships declared in a state of mutiny was a capital offence?

(5) Injuring the Kt'ng's armour Several statutes punishable with death fall under the head 'injuring the King's armour'. An Act of 1589" punish-

ed. a person in charge or custody of any armour, ordnance, munition. etc, or of any victuals provided for soldiers, etc., who embez:/led. purloined or conveyed away any of the goods to the value of 20 shillings.

By a later Act,7 the Judge was given power after sentence, to transport such offender, as an alternative punishment to the death penalty.

An Act of 17498 extended capital punishment to any person in the fleet who unlawfully burnt or set ﬁre to any magazine, etc., or s'.?i}3, etc., belonging and not at that time appertaining to an enemy or rebel.

Burning or destroying any of the King's ships, stores, dockyards, arsenals, victualling and materials there placed for the building of ships or magazines, etc., was made a capital offence by an Act of 1772."

An Act of 1710 enacted that every person who shall un- lawfully attempt to kill or shall unlawfully assault, strike or wound any Privy Counsellor in the execution of his office, in council or in any committee of council shall be . Residents in France during the War Act, 1798 (38 Geo. 3 c. 79). . Custody of Napoleon Buonaparte Act, 1816 (56 Geo. 3 c. 22).

. Army and Navy Seduction Act, 1797 (37 Geo. 3 c. 70). Allegiance of Sea and Land Forces Act, 1817 (57 Geo. 3 c. 7).

. Mutinous Crews Act, 1797 (37 Geo. 3 c. 71).

Embezzlement Act, 1589 (31 Eliz. c. 4).

. Beneﬁt of Clergy Act, 1670 (22 Car. 2 c. 5).

. Navy Act, 1749 (22 Geo. 2 c. 33).

9. Dockyards, etc., Protection Act, 1772 (12 Geo. 3 c. 24), Section I. See I-Ialsbury, 3rd Edn., Vol. 10, pages 491 and 879.

og\|g\uu-§--wNH 170 punished with death} It is believed? that this was passed after the stabbing of Harley by Anthony Guiscard during the latter's examination before the Privy Council.

By an Act of 1747f rebels who returned from transpor- tation without licence or went voluntarily to France or Spain, as well as those who aided such rebels or were in correspondence with them, were punishable with death.

(6) Riotous Offences The following offences were capital':----

(a) riotously to assemble (12 persons or more) and not to disperse for an hour after the proclamation. Thus, the offence was constituted by unlawfully, riot- ously and tumultuously remaining or continuing to- gether although no specific act had been committed;

(b) opposing the making of the proclamation and not to disperse within an hour after the making of the proclamation had been opposed;

(c) unlawfully to assemble to the disturbance of the public peace and when so assembled unlawfully and with force to demolish or pull down any church or chapel, or any building for religious worship, certiﬁed and registered, or any dwelling house, etc. In an interesting case,5 it was held that if a person was present at a riot and, by shouting and other expressions ex-

cited the rioters in to demolish and to pull down a dwelling house, he was, a principal in the second degree; because, though he had himself taken no part in pulling down the house, etc., or committed any offence, etc., his participation in the offence amounted to aiding the abetting.

The Act of 1714 was ampliﬁed by a later Act? what pro- vided that pulling down, etc., any mill which had been or was being erected or any works belonging thereto was also punishable with death.

1. Attempt on the life of a Privy Counsellor Act, 1710 (9 Anne c. 16).

2. Radzinowicz, History of the English Criminal Law, (1948), Vol. I, page 619, foot-note 38.

3. Traitors Transported Act, 1747 (20 Geo. 2c. 48).

4. The Riot Act, I714 (1 Geo. I Statute 2 c. 5).

5. Royce, (1767) 4 Burr 2073.

6. Malicious Injury Act, 1769 (9 Geo. 3 c. 29).

171

(7) Destroying banks, ﬂood-90198 and b7'id9e$ Several statutes provided death 'penalty for destroying river banksl-2 and wilfully and maliciously blowing up, pull- ing down or destroying certain Bridges."

(8) Offences against the public order Idle soldiers wandering about, or overstaying their leave without a testimonial or pass from a Justice Of the P9308 were punishable with death, if after conviction and after being retained in service by "an honest freeholder" they departed within a year without licence."

"Egyptians" (Gypsies) remaining more than one month in the Kingdom, or any person, above 14, found in their company who remained one niomh in the Kingdom. were punishable with death?'-5.

(9) Oﬁence against administration of justice Capital Punishment was appointed for certain offences connected with administration of justice, such as,-

(a) acknowledging ﬁne, recovery, judgment, etc., in the name of a person not privy thereto;7

(b) false entry in a marriage register, or destroy-

ing such register, etc., with intent to avoid any marriage or to subject any person to any of the penalties of the Act;'5 (C) "taking a reward to help to stolen goods." This dangerous practice was "a contrivance carried to a great length of villainy in the beginning of the reign of George, the First;"'°

(d) Avoiding justice by taking shelter in supposed privileged places (like ancient places of the Crown) ;11

1. Perpetration of Various Laws Act, 1733 (6 Geo. 2 c. 37). section 5 made permanent by Continuance of Act, 1757 (31 Geo. 2 c. 42) (river- bank or sea bank). 3 we: n-iv".-av-z BbI§#~'F,"'v'~ re » : .--~--- .

U75?" 2. For bank, ﬂood-gag-torasluicie-'Ii1';d:fo;;l3;rTeli:iiigthue'Bédf0rd I:evel, see'the Bedford Level Act, 1754 (27 Geo. 2 c. 19). ' IK.;T"€>"T' 7*'--ﬁiﬁ ' '-0- ' -- y 9' ~ 4V¥$» '?Tj(*'

3. For London and Westminster bridges, xee Westminster Bridge Act, 'I736 (9 Geo. 2 c. 29) and London Bridge Act, 1757 (31 Geo. 2 c. 20).

4. Vagabonds Act, 1597 (39 Eliz. c. 14).

5. Egyptians Act, 1554 (1 and 2 Ph. & M. c. 4).

6. Egyptians Act, 1562 (5 Eliz. c. 20).

7. Fines and Recoveries Act, 1623 (21 Iac. I c. 26). Marriage Act, 1753' (26 Geo. 2 c. 33).

9. Piracy Act, 1717 (4 Geo. 1 c. 11), section 4.

1o. Blackstone, 4 comm. 132 and see Radzinowicz, History of English Criminal Law, (1948), Vol. I page 682.

11. Dealt with in several statutes of 1697, 1722 and 1724.

172

(e) escape of or liberation of prisoners prison- bre.-:r_king, by force, rescue of a. prisoner by force, return- ing or being at large after transportation} (10) Oﬁences against public health Following offences were capital:----

(a) Infected person having upon him infectious un- cured sores, disobeying orders to remain in his house,"

(b) Disobeying order prohibiting entry of vessel in-

fected by plague; and

(c) Concealment by ships masters of fact that their vessel had come from infected place etc.; refusal to conform with obligation to remain in quarantine; and similar offences under an Act of 1753,3 re--enacte later} (11) Smuggling Smuggling, it appears, was carried on by great gangs carrying ﬁrearrns or others offensive weapons, and several oﬁicers of Customs and Excise had been "wounded, maimed, and some of them even killed in execution of their office.''5 Hence an Act of 17465 made it a capital offence to assemble armed. to the number of three Or more, in order to assist in landing or carrying away prohibited, uncustomed or re- landed goods; to pass, masked or disguised, with prohibited, uncustomed or re--landed goods to maim or wound officers going on boards. ship within a port; to shoot at or danger- ously wound officers on board such ships in execution of their duty, etc. The Act of 1746 was supplemented by an Act of 1784,7 making it a capital offence to shoot at or upon any ship, boat or vessel belonging to His Majesty within four leagues of the coast or to shoot at naval, customs and excise officers.

An act of 18123 relaxed the law, but still retained death penalty for serious offences against the public revenue.

An act of 1825'" consolidated the law again, and made it still more lenient, but continued death penalty for certain offences of smuggling, e.g., three or more persons armed with ﬁrearms assembled to assist in the illegal exportation of goods, etc., and persons shooting at a boat belonging to the navy.

I. Radzinowicz. History of English Criminal Law, (1948), Vol. 1, page 623 to to 625.,

2. Plague Act, 1604 (1 Jae. I c. 31).

3. Quarantine Act, 1753 (26 Geo. 2c. 6), sections 2, 3, 8, I0, 17. ) 4. Quarantine Act, 1800, replaced by Quarantine Act, 1805 (45 Geo. 3c. IO .

5. Preamble to Oﬁ'ences against the Customs Act, 1746 (19 Geo. 2 c.

34)-

6. Offences against the Customs Act, 1746 (19 Geo. c. 34): sections 1,2.

7. Smuggling Act, 1784 (24 Geo. 3, sess. 2. 47) section II.

8. Land Tax Certiﬁcates Forgery Act, 1812 (52 Geo. 3 c. 143).

9. Customs Act, 1825 (6 Geo. 4 c. 108), sections 56, 57.

173

(12) Counterfeiting stamps, etc. Several statutes imposed capital punishment for forging or counterfeiting duty stamps on various kinds of goods, or forging debentures relating to excise duties and certain other documents executed under revenue laws} (13) Petty treason Petty treason was an aggravated form of murder. and consisted in the homicide of~

(i) a master by his servant;

(ii) a husband by his wife; or

(iii) an ecclesiastical superior by his inferior.

It was a capital offence-3-' It had this feature in com- mon with treason, that it amounted to a violation of the conﬁdence on which the particular relationship was founded.

Men convicted of high or petty treasons were, after exe- cution, to be disembowelled and quartered, and woman so convicted were (after execution) burnt.' In actual practice some leniency in execution was observed in most cases?

Petty treason was abolished by a later Act."

(14) Murder Murder was felony at common law. The punishment for murder had been made the object of two statutes?-5 But the matter was definitely settled by an Act of 15417." That Act excluded, the beneﬁt of clergy, any person "attain- ed or convicted of murder of malice prepense or of poison- ing with malice prepense . . . . The specific mention of poisoning was due to the case of the Bishop of Rechestefs Cook who had put some poison into a vessel of yeast, there- by causing the deaths of several persons.

I. These were later embodied in-- (z') Customs and Excise Act, 1787 (27 Geo. 3 c. 13). (£0 Stamps Act, 1797 (37 Geo. 3 c. 90).

2. Treason Act, 1351 (25 Edw. 3 St. 5 c. 2).

3. Beneﬁt of Clergy Act. 1496 (12 Hen. 7 c. 7).

4. mg; Ratlzinowicz, History of English Criminal Law, (I948), Vol. I, pages 239 to 211, 220, 221.

5. Radzinowicz, H.'.;tor;v of English Criminal Law, (1943), Vol I, pages 223-225.

6. Otiences against the Person Act. 1828 (9 Geo. 4 c. 31), section 2.

7. Th: Beneﬁt of Qlerggt Act, 153: (23 Hen. S c. 1).

8. Standing Mute, etc., Act, 1533 (25 Hen. 8 c. 3).

9. Treason and Felony Act, 1547 (r Edw. 6 c. 12) sections I3 and 13.

174

(15) Bastard Child-Killing An Act of 16231 enacted (in substance) that if any woman who is delivered of any issue of her body, male or female, which would be a bastard, she endeavours privately so.to conceal the death thereof that it may not come to light (1.8. the fact whether it was born alive or not is Concealed by her action) then she shall suffer death as in the case of murder unless she could prove at least by one witness that the child was born dead. Thus, in substance, concealment of birth amounted to a presumption of murder; this is ex- plained by the fact that in such cases it was diﬁicult to prove that the child had been born alive?

This Act evoked great controversy, particularly because it was contrary to the presumption of innocence. Courts, it appears, went to extreme limits in narrowing down its scope, e.g., (i) by holding that there was no concealment if the mother had called for help or had confessed that she was about to have a child, or (ii) by requiring some sort of evidence that the child, had been born alive, or (iii) by holding that there could be no concealment if any person be present, even though that person was privy to the guilt."

One of the arguments used against the Act was that it was inﬁnitely better that ten guilty persons should escape rather than that one innocent person be hanged. This law asserted that 10 innocent persons should be hanged, so that one guilty person does not escape."

The Act was replaced in 1803 by a statute which re- drafted the deﬁnition of the offence of murdering the bas- tard children,5 bringing it in line with the general position.

(16) Stabbing In view of frequent outrages committed by person of ﬂammable spirit and deep resentment, who, wearing short daggers under their clothes stabbed a person on slight pro- vocation," an Act was passed in 16047 which made it a capi- tal offence without beneﬁt of clergy to stab or thrust any person (who had not any weapon drawn or who had not struck the party stabbing or thrusting) so that the person stabbed or thrust died within 3 months, although it could I. Concealment of Birth of Bastards Act, 1623 (21 Jac. I c. 27) made perpetual by the Continuance of Act, 1640 (16 Car. I c. 4).

2. See Radzinowicz, History of English Criminal Law, (1948), Vol. 1, page 629 and the preamble to the Act quoted at page 431.

3. See Radzinowicz, History of the English Criminal Law, (1948), Vol.1, Pages 433-434-

4. See Radzinowicz, History of English Criminal Law, (1948), vol. r, page 435 -

5. Lord Ellenborough's Act, 1803 (43 Geo. 3 c. 58), section 3.

6._ Radzinowicz, History of English Criminal Law, (1948), vol. I, page 630, and toot-note 93.

7. Stabbing Act, 1604 (I Jae. I c. 8).

175

not be proved that the same was done of malice afore- thought.

(17) Mayhem or maiming By an Act of 1670} a person who on malice afore- thought unlawfully cut off or disabled the tongue, put out an eye or slit the nose. lips, etc., or disabled any limb or any member of a subject of His Majesty, was to suffer death without beneﬁt of clergy.

(18) Shooting in dwelling house By an Act of 1722," a person wilfully and maliciously shooting at any person in a dwelling house or other place was punishable with death, whether or not his action re- sulted in killing or maiming. The shooting had to be malicious, and therefore should amount to murder if death had ensued, and it must have been with a gun and other instrument so loaded as to create danger for the party aim- ed at, the probable consequence of which would be to kill or maim and the gun, etc., also had to be levelled at him, according to the Act as interpreted."

The Act contained several other provisions punishing other offences with death, but these are not relevant under the present head.

(19) Ships Under an Act of 1753," it was a capital offence to beat or wound, with intent to kill or destroy, or otherwise wil- fully to obstruct the escape of any person endeavouring to save his or her life from a ship or vessel or from the wreck thereof. (The Act was primarily designed to ensure the protection of ships in distress).

(20) Causing of Miscarriage Under Lord Ellenborough's Act,5 administering poison or any other noxious and destructive substance with in- tent to cause miscarriage was a capital offence, (21) Shooting, etc., with intent to murder, etc. By an Act of 1803,5 shooting at, or attempting to shoot, rtelrbinsr or cutting: any person. with intent to murder, maim, oistigure, etc., and to resist lawful apprehension, was made a capital offence.

I. Coventry Act, 1670 (22 and 23 Car. 2c. 1), section 7.

2. The Waltham Black Act, 1722 (9 Geo. I e. 22).

3. Radzinowicz, History of Criminal Law, (1948), Vol. 1, pages 69-70.

4. Sterling Ship-wrecked Goods Act, 1753 (26 Geo. 2 c. 19), section

5. Lo.'d El1enborough's Act, 1803 (43 Geo. 3 c. 58), section I.

6. Lord El1enborough's Act, 1803 (43 Geo. 3 c. 58), section I .

176

(This Act provoked a lot of criticism)?

(22) Rape Originally, rape was a felony punishable with death? This was regarded as too harsh, and the punishment was replaced by a castration and loss of eyes." fhe punish- ment was still further mitigated in 1275," by an Act which reduced the offence to a trespass, and subjected the guilty party to two years' imprisonment and a fine at the King's will.5 But this lenience was said to have been pro- ductive of terrible consequences, and it was found neces- sary later to pass an Act" which made punishable by l'~1dg' ment of life and member the ravishing of a woman, whe- ther married, maid or other, where she did not consent, neither before nor after?

Passed under a statute in 1576? any person who feloni- ously committed rape and was found guilty by verdict or was outlawed, or confessed the same upon arraignment, was to suffer death. This statute was repealed and super- seded in 1828."

The punishment for rape in England now is imprison- ment for life."

(23) Sodomy An Act of 1562" (which revived and conﬁrmed earlier statutes) appointed capital punishment for sodomy and crimes against nature, by an Act of 1749." Any person in His Majesty's ﬂeet who committed either of these offences, as well as his aiders and abettors, were to be tried by a court-martial and sentenced to death.

"In fact, in ancient times, the punishment for this onence was death, and about the time of Richard, the I. Radzinowicz, History df' English Criminal Law, (1948), Vol. 1, page 506 f0ot--note 39.

2. Radziriowicz, History of English Criminal Law, (1948), Vol. 1, page 631, foot-note 2 ; Russell on Crime, (1964), Vol. 1, page 706.

. 3. Russell on Crime, (.1964), Vol. 1, page 706 and foot-note 4; Radzinowicz, History of English Criminal Law, (1948), Vol. I, page 631, foot--note 2.

4. Statute of _Westminster 1 (3 Edw. 1 c. i3), (1275). . Russell on Crime, (1964), Vol. 1, page 706.

. Statute of Westminster Second (13 Edw. I c. 35). . See Russell on Crime, (1964), Vol. 1, page 7o6.

. Beneﬁt of Clergy Act, 1576. (18 Eliz. c. 7).

9. Offences against the Person Act, 1828 (9 Geo. 4 c. 3i), (for England) ; see Russell on Crime, (1964), Vol. 1, page 707.

10. Section I, and second schedule Sexual Offences Act, 1956 (4 and 5 Eliz. 2 c. 69). ' II. Sodomy Act, 1562 (5 Eliz. c. 17).

12. Navy Act, 1749 (22 Geo. 2 c. 33).

0O\l O\V| 177 First, the Practice was to hang a man, and drown a woman, guilty of this offence} Death sentence for sodomy was retained by the Act of 1828f which was in force until 1861."

The present punishment for the offence is imprison- ment for life."

(24) Abduction of heiress Under a statute of 1486,5 abduction of a woman who was an heiress apparent and who had substance either in goods or lands, followed by her marriage or deﬁlement, was punishable with death.5 This was not a purely sexual offence, the motive was economic," though often accom- panied by sexual offences.

The preamble to the statute7 recited, that women- maids, widows and wives having substance in goods, etc., had been often taken by misdoers for the "lucre of such substances" and afterwards marred or deﬁled.

The offence of abduction of a girl under 21 years in a similar situation is now punishable with imprisonment for 14 yearsf' (25) Simple grand larceny Theft not accompanied by any aggravating circum- stances was, at common law, simple larceny, if the value of the stolen goods exceeded 12 pence, it was simple grand larceny. Such larceny was originally punishable by whip- ping, then with transportation for 7 years, and (by later Acts) with imprisonment or ﬁne, by death with beneﬁt of clergy, or if the beneﬁt was claimed, by burning in the hand, etc. But a great number of statutes excluded from the beneﬁt of clergy offenders guilty of certain kinds of grand larceny. Of these offences, only a few may be men- tioned here, such as stealing of horses, etc., feloniously driving away, or stealing sheep, cows, etc., feloniously cut« ting and taking cloth from the reck or tenter in the night time." Theft of goods valued at 40 shillings in any ship, . Russell on crime, (1964), Vol. 1, page 735, foot-note 2. . Offences against the Person Act, 1828 (9 Geo. 4 c. 31). . Offences against the Person Act, 1861 (24 and 25 Vic. c. 100).

. Sections I0 and 12 Sexual Offences Act, 1956 (4 and 5 Eliz. 2 c. 69). . Abduction of Women Act, 1486 (3 Hen. 7 c. 2).

. See Radzinowicz, History of English Criminal Law, (1948), Vol. I, pages 632 and 438, foot-notes 35 and 36.

7. The preamble is quoted in Radzinowicz, History of English Criminal Law, (I948), Vol. 1, page 446.

8. Section 18, Sexual Offences Act, 1956 (4 and 5 Eliz. 2 c. 69). 6 9. Radzinowicz, History of English Criminal Law, (1948), Vol. I, pages 3c-633.

13--122 Law.

oxu.-&2uJN>-u 178 etc., on any navigable river or in any port of entry or C115; charge was made punishable with death. One' Act punished with death theft of any mall from any bag of letters sent by the post or of any letter or packet convey- ed by the post or out _of any post office or any place used for the receipt or delivery of letters; Other Actss which deserve to be noted are Acts of 1589," and of 1670, Under which, larceny of military and naval stores by any per- son in charge of such places to the Value of 20 shillings at one or several different times, was punishable with death.

(26) Burglary Larceny committed in a dwelling house was known as 'Minnie compound larceny", and so was larceny from the person of another. Larceny in a dwelling house_was known as burglary. At common law it was felony within the beneﬁt of clergy, but, by statutes it was made a capi- tal offence without beneﬁt of clergy." A number of other larcenies in houses, shops and warehouses were also made capital by statutes.5 These statutes are too numerous to be discussed here. (27) Larceny from the person Two classes of larceny from the person were made capital offences without beneﬁt of clergy, namely--

(i) any person convicted of feloniously taking away any money, goods or chattels from the person of any other, privily without his knowledge, in any place whatsoever (known as larceny calm et secrete from the person) if the value was 12 £ or more;"

(ii) Robbery, i.e., felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear. We may note only the main statute,' re-

lating to a person who robbed any other person. or comforted, aided, abetted, assisted, etc., any person to commit the said offence.

(28) Larceny by servants, etc. While many of the statutes punishing larceny were wide enough to cover theft by a servant in the master's house, of tangible property, some difficulty survived re- garding other kinds of property stolen by a servant. The I. Post Ofﬁce Olfences Act, 1767 (7 Geo. 3c. 50).

2. Embezzlement Act, 1589 (31 Eliz. c. 4).

3. Beneﬁt of Clergy Act, I670 (22 Car. 2 c. 5).

4. See Radzinowicz, History of English Criminal Law, (1948), Vol. I, P383 535- . . . . . .

5. See Radzinowicz, History of English Criminal Law, (1948), Vol. I, page 635.

6. Beneﬁt of Clergy Act, 1565 (8 Eliz. c. 4); section 2.

7. Beneﬁt of Clergy Act, 1691 (3 and 4 W. & M. c. 9). section 1.

doctrine that property once delivered to 1115 servant 18 no longer in the masters possession, and that I31 S€I"Vfanl51Wh° appropriates such goods 15 therefore not guilty o_ fe onyi was the cause of this diiﬁculty, and to meet this dlﬁclculty, a number of statutes had been Passed Pumshmg "'--"v'}"_"5 acts by servants amounting toembezzlement of securliles and other effects, particularly in the case of "employees of banks, certain companies and the post office.' (29) Blackmail To send letters threatening injury to life 01' l91'0l39Tty in order to extort money was a high misdemeanour at common law, punishable by a ﬁne and imprisonment. In 1722," an Act was passed whereby a person who know- ingly sent letters either unsigned or signed with a Fictiti- ous name, demanding money was guilty of a felony w1th~ out benefit of clergy. A later Act passed in 17544 simi- larly punished with death any person who knowingly sent letters without a name or with a ﬁctitious name, threaTen- tng to kill or to burn any house, although no money or valuable effects had been demanded in it.

The courts put a wide construction on the first Act. apparently because extorting money by sending threaten- ing letters was a common offence in the 18th century?' (30) Ransom An Act of 19606 recited that many person within the coun- ties of Cumberland, Northumberland, etc., had been (either in their house or while travelling) carried as prisoners and kept barbarously and cruelly until redeemed by great ransom, etc., so that many persons had been forced to pay a certain rate of money, corn, cattle or other consideration, commonly called blackmail in order to be freed or pro- tected in safety from the danger of such robbery, etc. For all these offences, and for being privy, etc., thereto, capital punishment was provided for by that Act.

(31) Oﬁences by Bankrupts By an Act of 1732,? later made permanent} death penalty without beneﬁt of clergy was appointed for bankrupts I I. See Radzinowicz, History of English Criminal Law, (r948), Vol. I, page

639.

2. As to Post Office, see the Post Oﬂice Offences Act, 1767 (7 Geo. 3 c.

50), section I.

3. Waltham Back Act, x722 (9 Geo. I c. 27).

4. Persons Going Armed and Disguised Act, 1754 (27 Geo. 2c 15).

5. See Radzinowicz, History of English Criminal Law, (1948), Vol. 1, page 75-

6. Outrages in Northern Counties Act, 1601 (43 Eliz. c. 13).

7. Bankrupts Act, 1732 (5 Geo. 2 c. 30), section I.

8. Bankrupis Act, 1797 (37 Geo. 3 c. 124).

180

who failed either to surrender themselves to the Comrn1s- sioners within 42 days after notice or to submit to being examined or fully to disclose their estates and effects or to deliver their estates and effects for the beneﬁt bf their creditors or who removed, concealed or embezzled any part of their estate to the value of 20 pound, etc. Another Actl provided death penalty for a person who refused to deliver a schedule of his estates and effects to a creditor (apparently after an order of the court). The Act recited, that several persons who were prisoners for debt chose to continue in prison, and to spend their sub- stances there than to discover and deliver up to their cre- ditors their estates, etc. (32) Forgery At common law_ forgery was a misdemeanour only. In 1562,? an Act was passed to broaden the legal concept of forgery and to establish a new system of punishment. Section 1 of the Act recited, that the "Wicked, pernicious and dangerous practice of making, forging and publishing false charters, evidences, deeds, etc., had of late time been very much practised", to the High displeasure of God and the great injury of the subjects and this was due chieﬂy to the reason that the punishments were small and mild. After providing the punishment of cutting off ears, slitting the nostrils, etc., for certain types of forgery, the Act (sec- tion 7) punished offenders convicted for the second time of forgery with death without beneﬁt of clergy. The Act was virtually superseded by later Acts, but formally re- mained in force till 1830. There were certain other capital statutes (too numerous to be mentioned here) punishing various types of forgery. with death." These related to forgery of deeds, bonds, bills, shares of public companies, stamps, and marks, forgery of the seal of Bank of England, bank notes, etc. It is well known that this severity of punishment for forgery induced many bankers to petition forltlesser punishment/' as it had rendered conviction diffi- cu .

(33) Personation The offence of falsely personating another with intent to defraud was a misdemeanour at common law. But, by several statutes? personation of certain classes of person, such as, proprietors of shares in stock of bodies corporate, or personation of officers, seamen, etc., or of a certain pen- Si0n€I', 01' personating the nominees of life, annuities, etc. was made a capital offence.

I. Insolvent Debtors Relief Act, 1755 (28 Geo. 2 c. 13), section 39 .

2. Forgery Act, (1962) (5 Eliz. c. 14).

3. See Radzinowicz, History of English Criminal Law, (1948), Vol. 1, pages 644-650.

4. See Radzinowicz, History of English Criminal Law, (1948), Vol. 1, pages 550, 555, 557, 592 and petition on page 730.

5. See Radzinowicz, History of English Criminal Law, (1948), Vol. I, pages 651-652.

181

(34) Destroying ships to the prejudice of insurance com- panies By an Act of 1717} superseded by a later Act," if any owner or captain, master, etc., of any Shlp or vessel wil- fully cast away, burnt or otherwise destroyed the ship, etc., with intent to prejudice the insurers, he was guilty of felony without benefit of clergy.

There were also earlier statutes under which the acts in question were feloniously punishable with death. One of these statutes recited} that it often happened that mas- ters and mariners of ships, having insured or taken upon Bottomry, greater sums of money than the value of their adventure, wilfully cast away, burnt or otherwise des- troyed the ships, to the merchants and owners' great loss. The impact of the Act, of 1717 lay in its extending the offence to the owner, etc, who defrauded the insurers.

(35) Coinage Many offences connected with coinage, such as counter- feiting, bringing false money into the realm, and impairing coins were made capital offences.' (36) Arson Several kinds of arson were made capital by statutes and it is enough to note the Act of 1722,5 which appointed absolute capital punishment for setting ﬁre to any house, barn or out-house, to any hovel cock, mow or corn, hay or wood. A later Acté punished with death setting on ﬁre any mine, pit, or delph of coal, etc, Still another Act7 made it a capital offence to set on ﬁre or otherwise destroy ships of war, on ﬂoat or in pro- cess of building, arsenals, magazines, victualling offices, or any of the buildings erected therein or belonging thereto?

Several statutes made it a capital offence to set on ﬁre one's own house, or building, engine or erection used for carrying on any trade or manufacture, with intent to injure or defraud."

I. Stranded Ships Act, 1717 (4 Geo. 8 c. 12).

2. Continuance Act, 1724 (11 Geo. I c. 29).

3. Merchant Shipping Piracy Act, I670 (22 and 23 Car. 2 c. II), section

12.

4. See Radzinowicz, History of English Criminal Law, (I948),Vol. 1, pages 652---654.

5. The Waltham Black Act, 1722 (9 Geo. 1 c. 22), section I.

6. Offences against the Persons Act, I737 (10 Geo. 2 c. 32), section 6.

7. Dockyards, etc., Protection Act, 1772 (12 Geo. 3 c. 24), section 1.

8. The Act of 1772 is still in force, and the offence is a capital one, but the _court may abstain from pronouncing sentence of death and may order the ;udgment to be entered in record.

fOOt_.IS1'(e:e Iglslsbury, 3rd Edn., Vol. to, page 434, foot-note (d) and page 435.

9. Radzinowicz, History of the English Criminal Law, (1948), Vol. I, page 655- 132 (37) Wilfut destruction otherwise than by ﬁre Wilful destruction otherwise than by fire of certain kinds of property, such as linen cloth, or linen yarn, e_tc., certain woollen textile, stocking or lace, frame machine or other machines, engines, etc., belonging to collieries and mines, building or engines used in carrying on any trade or manufacture, were punishable with death} Beside this, a captain, master, etc., Who wilfully Cast away, burnt or otherwise destroyed a ship, or a person who did these acts to the prejudice of the owner of the ship or any merchant whose goods were loaded thereon or who destroyed any goods in any ship in distress Were punishable with death?

(38) Piracy In the middle ages, piracy was regarded as a kind of treason if the offender was not an alien. If the offender was an alien, it was a felony. In more recent times, piracy was held to be robbery or unauthorised depredation on the high seas."

It was not a felony at common law, and the ﬁrst sta- tute made it a capital offence though not a felony, and some doubts survived as to whether the beneﬁt of clergy was available in respect of this olfence.

An Act of 17004 declared that the King's subject who committed an act of hostility on the high seas against any other subject of the King by commission of any foreign power or under pretended authority from any person what- soever, should be considered guilty of piracy and punished with death, and loss of lands, etc., as pirates, felons and robbers upon the seas ought to have and suffer.

Section 9 of the same Act made a certain number of other acts of piracy liable to the same punishment. Later Acts made supplementary provisions?

The law on the subject is now contained in the Act of 1837," under which piracy is punishable with death where any person on or belonging to the vessel attacked is as- saulted with intent to murder or wounded or has his life endangered, or with imprisonment for life or for any shor-

ter term in other cases.7 65S_6I5.6l{adzinowicz, History of Englishlcriminal Law, (1948), Vol. 1, pages 6 2. Randzinowicz, History of English Criminal Law, (1948), vol, 1 page

57. '

3. Radzinowicz, Historyiof English Criminal Law, (1948), Vol.1, page 657_

4. Suppression of Piracy Act, r700 (11 and I2, Will, 3 c. 11), sectfon 8, 658 5. Radzinowicz, History of English Criminal 'Law, (1948), Vol. 1, page 6_. The Piracy Act, I837 (7 Will. 4 and I Vict. c. 88).

7. See Halsbury, 3rd Edn., Vol. I0, page 654, paragraph 1245., V _ , 183 APPENDIX XX ENGLISH LAW or TREASON .English Law of Treason The relevant provisions of the treason Acts of 1351 and 1795 are quoted below :--

"Treason Act, 1351 (25 Edw_ 3, et. 5, c. 2)--Decla- ration of Treasons.

Item, whereas diverse opinions have been before this time in what case treason shall be said, and in what not; the King, at the request of the lords and of the commons, hath made a declaration in the man- ner as hereafter followeth; that is to say, when a man doth compass or imagine the death of our lord the I~<Iing, or of our lady his Queen, or of their eldest son and heir; or if a man do violate the King's compa- nion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir; or if a man do levy war against our lord the King in his realm, or be adherent to the King's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably ('provalement') attained Of open deed by the people of their condition....and if a man slea (sic) the chancellor, treasurer, of the King's justices of the one bench, or the other justices in eyre, or justices of assize, and all oth'.er justices assigned to hear and determine, being in their places doing their offences [see Steph. Dig. Cr. L. (9th ed.) 59]. And it is to be understood, that in the cases above rehearsed, and ought to be judged treason which extends to our lord the King, and his royal majesty: ....And if precase any man of this realm ride armed covertly or secretly with men of arms against any other, to slay him. or rob him, or take him or retain him till he hath made ﬁne or ransom for to have his deliverance, it is not in the mind of the King nor his council, that in such case it shall be judged treason, but shall be judged felony or trespass according to the laws of the land of old time used, and according as the case requireth."

"Treason Act, 1795, (36 Geo. 3 c. 1) s. 1--Plots to kill, etc., the sovereign or his or her heirs and suces- sors.

If any person or persons whatsoever . . . . .. shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wound- ing, imprisonment or restraint, of the person of His Majesty, His heirs and successors . . . . ..and such com- passings, imaginations, inventions, devices, or intentions or any of them, shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed; being legally convicted thereof, upon-the 184 oaths of two lawful and credible witnesses, upon trial! or otherwise convicted or attained by the course of law, then every such person and persons, so as afore- said offending, shall be deemed, declared and adjudg- ed to be a traitor and traitors, and shall suffer pains- of death . . . . ..as in cases of high treason."

Certain other acts were declared to be felony-now "treason felony", by the Acts of 1795 and 1848. Punish- ment for such acts is not death. Hence, we need not dis cuss them in detail} It is no longer necessary to have a minimum of two witnesses to prove treason?

As to treason which is not high treason, but merely a felony, the punishment for imprisonment of life is laid down by the "Treason Felony" Act.3 The following chart will show the comparative position. regarding punishment in England and in India on the various Acts which constitute treason according to Eng-« lish law 2--

English Law Indian Law Compassing or imagining the death Not relevant there being no King. of the King or violating the King's companion, etc. (1351 Act).

Punishment Death.

Levying war against the King in his Waging war against the Government realm or being adherent to the and abetting the waging of such King's enemies in his realm, giving war are punishable with death or to them aid and comfortin the realm imprisonment for life and also with or elsewhere and thereof be prov- ﬁne. (Section I21, Indian Penal:

ably attained of open deed by the Code). Being adherent to enemies. people of their condition. not mentioned.

(1351 Act).

Punishment Death.

Slaying the Chancellor, Treasurer or Governed by the ordinary law of the King's justices, etc., culpable homicide and murder. (1351 Act).

Punishment Death.

Compassing, imagining, inventing, Not relevant. there being no Kirg.

devising or intending death or des-

truction, or any bodily harm tending to death or destruction, etc., of the persons of the King, etc. (1795 Act).

I, See Russel on Crime, (1964), Vol. 1, pages 2Io--2tI.

2. Se_e section 1, Treason Act, 1945, assimilatittg the prccedure in an treason trials to the procedure in cases of murder.

3. Section 3 of the Treason Falony Act, 1848 (II and I2, Vic. c. 12).

See Archbold, Criminal Pleading, etc. (1962), page 1222, paragraph 3041, (compassing the deposition of the Queen, or ccmpelling the Queen to Change her measures, etc., or overawing Parliament, etc.) 185 The above comparison of the English and the Indian provisions would show that, roughly speaking, the only category of treason about which there is no speciﬁc men- tion in the Indian Penal Code is that indicated by the words of the English Act "be adherent to the King's ene- mies in his realm, giving to them aid and comfort in the realm or elsewhere." Under the words "adherent etc." an actual adherence must be proved.1 The leading cases under this head are the under-men- tioned. 2-" In one of those cases, Sir Roger David Case- ment was tried for treason because he went to Germany during the First World War and there actively endeavour- ed to persuade other British Subjects (Irish Soldiers who were prisoners in Germany) to join an Irish brigade and assist Germany. He also took part in an expedi- tion from Germany with the object of landing arms in Ireland for supply to Irishmen for being used on behalf of Germany. He was held guilty of treason by adhering to the King's enemies elsewhere than in the King's realm.' In the other case, William Joyce was tried for traitor- ously contriving to aid the King's enemies ("adhering" to as well as "giving aid and comfort" to the enemies in areas Without the realm of England) by broadcasting to British subjects propaganda on behalf of the enemies of the King.

The words "giving aid etc." would cover any act done by a British subject which strengthens or tends to streng- then the enemies of the Queen in the conduct of a war against the Queen or which weakens or tends to weaken the power of the Queen and of the country to resist or attack the enemies of the Queen.5 Regarding transmission of intelligence, an interesting case is that of Stone." There, Lord Kenyon C. J. observed that if the intelligence transmitted was such as was likely to prove useful to the enemies in enabling them "to annoy us, defend themselves or shape their attacks," sending such intelligence with a view to its reaching the enemy was undoubtedly high treason.

Thus, it may be noted that under these heads there is emphasis on enemies being adhered to or aided.

1. Archbold, Criminal Pleading, etc. (1962), paragraph 3031.

2. Rex. v. Casement, (1917) I K.B. 98, (1916-1917) I All. E.R. Rep. 214 (C.C.A.). Forfull facts see Lord Philips leading cases in constitutional law (1957), page 130- 3 Joyce v. D.P.P. (I946) A.C. 347 ; (1946) I A. E. R. 186 (H.L.).

4.Leave to appeal was refused by the Attorney General. See Ducann, English Treason Trials, (1964), page 243.

5. Archbold, Criminal Pleading, (1962), paragraph 3033 et seq.

6. R. v. Stone, 25 St. Tr. 1155, discussed in Archbold, (I962), paragraph 3034- Being ad-

herent to the King":

enemies.

Death nal~ . . . . .

[y m E33513 tam offences in Russia, it may be useful to summarise the for economic important provisions on the subject.

offences.

-186 'As to communication with enemies} the following ex- tract from Halsbury2 would be helpful :--

"Communications with the enemy from which he may derive information enabling him to shape his attack or defence constitute an adherence to the enemy.3 The fact that the communications were intercept- ed and did not reach the enemy is immaterial*."

APPENDIX XXI DEATH PENALTY IN RUSSIA Since the penalty of death is now permissible for cer-

The death penalty was abolished in Russia in 1917. reintroduce-cl some months later in 1918, re-abolished in 1920 and again re-introduc- ed in 1920, i.e. in the same year. In May, 1947, it was abolished again, but in January, 1950 it was re--introduced for certain serious crimes (enemies of the regime, traitors. spies and subversive-diversionists). In 1954, it was ex- tended again to murder under aggravating circumstances. This position was repeated in the General Principles of 'Criminal Legislation laid down in 1958. Thereafter. in 1961-62, it has been extended to certain economic crimes.

1. For an interesting discussion, scc Pteverer, " Peace-time Espﬁorzge and the Law ". (1953) 6 Current Legal Problems 82, S5 to 88.

2. Halsbury, 3rd Edn., Vol. 10, page 562, paragraph 1034.

3. Forst. 217 ; R. v. Grshme (1961), 12 State Tr. 645 ; R . v. Gregg (I708) 14 State Tr. 1371 ; R. v. Hensay (1758), I9 State Tr. 1341, at page 1344 ; R. v. Maclane (I797), 26 State Tr. 721, at pages 796, 797 ; R. v. Tyrie (I782), 21 State Tr. 815 ; R. v. Jackson, (1795), 25 State Tr. 783; R. v. Shears: (1798) 27 State Tr. 255. In R. v. Stone (1796), 25 State Tr. 1155, it was contended by Erskine on behalf of the prisoner that such com- munications were not traitorous. if the prisoner's cbiect and intention were not to assist the enemy but to beneﬁt this country by dissuading the enemy from continuing the war (z'[7z'd., at page 1372 et seq). Lord Kenyon C. I. does not appear to have ruled against this contention (ibid ; at pages 1432, 'I434, and 1435), and the jury acquitted the prisoner, apparently upon this ground. In R. v. M. (1915), II Ct. App. Rep. 207, at page 214, in which a person was charged with attempting to communicate information calculated to be useful to the enemy in contravention of regulations made under the Defence of the Realm Consolidation Act, 1914 (5 and 6 Geo. 5, 8), it was held that the truth or falsity of the infonnation supplied was immaterial except as to the possible defence of intention not to assist but to mislead the enemy. It is apprehended the same princ:'p1e would apply in relation to treason.

4. R. v. 'Hensey (1758), 19 State Tr. I341 Mottee (I781), 21 State Tr. 687, at page 808 ; R. v. Gregg (I708), 14 State Tr. (1371), R. v. Maclane (I797) 26 State Tr. 721. Such cases may also it appears, be charged .as compassing or imagining the death of the Sovereign ;

-s'ee page 558, ante. , .

at page 1372 ; R. v. Dela 187 For convenience of reference, the present position is given offence wise in the following form':--

1 2 3 Rape. . . . Decree of February, Death penalty can be 5, 1962. awarded for aggravated cases of rape (commit-

ted by a dangerous recidivist or a gangf.

Aggravating circumstan-

ces are not deﬁned.

(Reasons for the drastic increase in punishment for murder are not known. In a book on Criminal Law, in r95I it xwts Stated that mur-

der rate was decreasing continuously). It is also not clear whether the death sentence is lT1L1l'.d{lt0f)'.

Intentional murder under Edict of April 10, aggravating circumstan- 1954. ces.

Speculation in currency. Decrees of March Dcath Sentence can be gold or securities pro- 25, 196i and July 1, awarded.

fessionally or on a major 1961.

scale and violation of currency regulations by a person who was al-

ready punished for such violation.

Theft and pilfering of Decree of May 5, Death Sentence can be State and social pro- 1961.

awarded.

petty.

Counterfeiting of currency Decree of May II, Death sentence can be and securities for sale, 1961. awarded.

or sale of such counter-

feit articles.

Taking of bribes by an Decree of February oﬁicial personally or 20, I962. through intermediary in whatever form, for performing or not performing to the ad-

vantage of the persons giving the brine, an act which the oﬁicial should have performed in the course Of his oﬁicial duties,--when the crime is committed by a per-

son in responsible posi-

tion, or by an official who has already been sentenced for bribery, or who has taken bribe several times or has ex-

torted bribe.

Death sentence can be awarded.

1. Based on material contained in Gsovski and Grzybowski Government, etc., in the Soviet Union, (1960), Vol. 2, page 939, text corresponding to foot-notes 39 and 40, and pages 940 and 941 paragraph 5, and also on " Eco. nomic Crimes in the Soviet Union ", Journal of the International Commision of jurists, (Dec. 1964), 3, at pages 5, 7 and 8.

J 188 Taking of bribe was a capital offence in the Russian Criminal Code of 1922. In 1927, it was changed to impri- sonment up to 10 years, which was altered in 1960 to imprisonment up to 5 years for an ordinary offence, and imprisonment up to 10 years for a second conviction or bribery with extortion. The present position is as fol--

lows:----

Bribery by minor oﬂicials. Imprisonment from 3 to 10 seas.

Bribery by persons in responsible posi- (i) Imprisonment from 8 10 15. tion, or by conﬁrmed bribe--takers, or years ;

bribery with extortion. _ (it) Conﬁscation of property;

(iii) 2 to 5 years deportation can be added to imprisonment;

(iv) Death sentence in ser;ous. cases.

A detailed discussion of the recent developments re- garding death penalty in Russia may be quoted":-

"The death penalty---carried out by shooting~--is still considered as "an exceptional punitive measure until its complete abolition" (article 23). It is useful to be reminded that the death penalty was provided in the same way "provisionally until full abolition" in the Basic Principles of 1924. In May 1947 the death penalty was abolished, but in 1950 it was re-introduced for "treason, espionage and diversion" and in April 1954 also for murder under aggravating circumstances- Now, according to article 23 of the Code, the death penalty may be imposed for treason (article 64), espionage (article 65), terrorist activities (articles 66 and 67), diversion (wrecking) (article 68), banditism and murder under the aggravating circumstances of articles 102 and 240. By a Decree of the Presidium of the Supreme Soviet of the U.S.S.R. of May 5, 1961, the death penalty has been extended to the following offences; counterfeiting, embezzlement of State or social property on a particularly large scale, terrorising fellow' inmates or attacking the prison administration by es- pecially dangerous criminals in place of detention, organising groups Within these places for this purpose or active participation in such gangs. In times of war or in a warlike situation the death penalty may also be imposed for other especially serious crimes which may be prescribed by the legislation of the U.S.S.R.".

1. Lepenna, New Russian Criminal Code, (1961), 10, International and Comparative Law Quarterly 421, 437.

189

APPENDIX XXII PROVISIONS IN FRENCH PENAL Coma REGARDING TREASON Regarding disclosure of secrets, an extract of the fol- lowing provisions from the French Penal Code' would be interesting:--

"Article 75 Any French national shall be guilty of treason and sentenced to death, if he:

(1) bears arms against France;

(2) has dealings with a foreign power in order to induce it to undertake hostilities against France, or provides it with the means therefor, either by facilitating the entrance of foreign forces into French territory, or by undermining the allegiance of the army, navy or air force, or by any other means whatsoever;

(3) delivers to a foreign power or to its agents, any French troops or territories, cities, fortresses, fortiﬁcations, posts, stores, arsenals, materials, ammunition, ships or aircraft belonging to France or to countries over which France exercises sovereignty;

(4) in time of war instigates soldiers or sailors to enlist in the service of a foreign power, facili-

tates their doing so or enlists persons to service with a power which is at war with France;

(5) in time of war has dealings with a foreign power or its agents in order to promote the actions of that power against France.

Within the meaning of this section, the nationals of countries over which France exercises sovereignty, as well as foreigners serving France as soldiers or sailors, are to be consi- dered like French nationals.

Within the meaning of this section, the territory of countries over which France exercises sovereignty are to be Considered as French territory."

I. French Penal Code, American Series of Foreign Penal Codes (I960), pages 43 to 45.

190

"Article 76 Any French national shall be guilty of treason and sentenced to death, if he:

(1) By any means whatsoever delivers to a foreign power or its agents a secret of the national defencel, or who acquires by any means the pos-

session; of such a secret in order to deliver it to a foreign power or to its agents;

(2) wilfully destroys or damages any ship, aircraft, material, supply, building or equipment which could be used for the national defence, or, / either before or after their completion, knowingly performs bad workmanship thereon, of such a nature as to prevent their functioning or to cause an accident;

(3) knowingly has participated in an action of demoralization of the army or nation aimed at prejudicing the national defence.

However, in time of peace any French national or foreigner shall be punished by solitary conﬁne- ment if he is guilty of:

(a) wilful bad workmanship in the manu-

facture of war material, when this bad work- manship is not of such a kind as to cause an» accident;

(b) wilful damage or destruction of mate- rial or equipment destined or used for national. defence;

of these materials;

(d) knowingly participating in an action of demoralization of the army, aimed at pre-

judicing the national defence.

The wilful participation in an action performed by a group and with open force, directed at and re- sulting in one of the felonies referred to in paragraphs

(a), (b) and (c), of this Article, as well as the prepara- tion of such action, shall also be punished by solitary conﬁnement."

"Article 77 Any foreigner who commits one of the acts' refer- red to in Article 75, paragraphs 2, 3, 4 and 5, and in article 76, paragraphs 1, 2 and 3, shall be guilty of espionage and sentenced to death.

1. See article 78, as to "Secrets of National Defence".

I91' Instigation or offer to commit one of the felonIes~' referred to in Articles 75 and 76 and in this Article shall be punished like the felony itself."

"Article 78 Within the meaning of this Code, the following are considered secrets of the national defense:

(1) Military as Well as diplomatic, economic.

or industrial information, which, by its nature, is not to be made known except to those entitled thereto, and which ought to be kept secret from anybody else in the interest of the national defense;

(2) goods, materials, documents, designs, drafts, maps, surveys, pictures or other reproduc- tions and all other documents whatsoever Which, by their nature, are not to be made known except to those who are entitled to use and to have them, and which ought to be kept secret from anybody else because they may allow the discovery of infor--

mation pertaining to the categories mentioned in the foregoing paragraph;

(3) military information of any nature what-

soever not made public by the government and not included in the above list and the publication, pro-

pagation, disclosure or dissemination of which has' been prohibited by law or decree of the Council of Ministers;

(4) information pertaining to measures taken for the discovery and arrest of principals and"

accessories of felonies and misdemeanours against' the external security of the state, or to procedures.

investigation or pleadings."

APPENDIX XXIII CAPITAL PUNISHMENT IN HINDU LAW [Detailed sub-heads----

A. Chronology.

B. Homicide in Hindu Law.

C. Capital Punishment in Hindu Period.

D. Principles of punishment.

E. Classiﬁcation of punishment in Hindu Law.' F. Diﬁerent kinds of punishment in Hindu Law;. G. Arguments against capital punishment.

H. Capital punishment for various crimes.

1. References from Manu.

J. Capital punishment and Buddhist Rules. K. Capital punishment in the Maratha PeriodI]f 192 A. Choronology Before dealing with the positionin Hindu Law, it would be convenient to state the chronology of various texts, etc., relevant IO the Hindu Period, which is given below:--

15oo--Iooo B.C. 1ooo--8oo B.C. 6oo--3oo B.C. 3oo--1oo B.C. 4oo--3oo B.C. 3oo----2oo B.C. Vedic Samhitas and Brahmanas.

Principal Upnishads.

Dharmasutras of Gautama, Apastarr-ba Baudhayana and Vasishtha.

Sankha-Lakhita Smriti.

Works of Pali Buddhist Canon.

Arthashastra of Kautilya.

2oo B.C.--A.D. 2oo Manu-Smriti. 3oo B.C.--A.D. 2oo Ramayana.

A.D. A.D. 1oo--3oo Ioo--2oo A.D. A.D. 1oo--3oo Ioo--3oo A.D. A.D. A.D. A.D. A.D. 1oo--3oo 1oo----3oo 1oo--4oo 2oo--3oo 2oo--5oo A.D. A.D. A.D. A.D. A.D. A.D. 300-500 300-400 3oo----4oo 4oo--5oo 3oo----6oo 3 5o--42o A.D. A.D. A.D. 400-600 4oo----6oo 4oo--8oo A.D. 65o--7oo A.D. A.D. 6oo--65o 6oo--65o Yaj navalka--Smriti.

Budhocharita and Saundaranancia of Asvaghosha.

Original Panchatantra.

Pratima--nataka and other works of Bhasa.

Works of classical Tamil literature. Works of Jaina (Svetambra) Canon. Narada-Smriti.

Chatush;ataka of Aryadeva.

Sabara's comme ntary on Mimamsa-sutras.

Brihaspati--Smriti.

Abhidharmakosa of Vasubandhu. Iatakamala of Aryasura.

Visuddhimagga of Buddhagho:a. Vayu, Vishnu and Markandeya Puranas.

Abhijananasakuntalam and other works of Kalidasa.

Katyayana-Smriti.

Niti:a1a of Ka.mac'.aka.

Mudrarakshasa, Bhattikavya, Kiratary ]aimini's iuniyam, Sisupalavadha and other works.

Tantravartika and other works on Mimamsa by Kumarila--Bhatta. Kadambari of Bana.

Dasakumaracharita of Dandin.

I. Taken from Ghoshal, A History of Indian Political Ideas, (1959), pages fxxi--xxii.

193

AD. 705-775 Commentaries on Avasyakasutras etc. by II'1_1'ibl1a'_lra.

A.D. 8o0----.'35o Balal<rid;1, commentary on 'Y:1jr1a\':1l1<ya-- Smriti by \~'is\'arupa.

A.D. 80:»--90;> .\rlanubhas11}'a, comm:::nt:try on Manu- Smriti by .\'ledhat1thi.

AD. 959 Nitivakyainritnni of SOI'I1'<1<.l€\'£1.

A.D. 1000-1100 Commentaries on Uvasagadasao and other works by Abhayadeva.

AD. 1o63------1o81 Kathasaritagaru of Sornatieva.

A.D. 1o82----1 100 Niitakshara, commentary on Yajnavalkya-- Smriti by Vijnanesvara.

A.D. 1089-1173 A iiwaracharita and other works by Hemchandra.

A.D. 11oo----1 130 Com nentary on Yajnavall<ya-Smriti by Aparkarka.

A.D. 11o0--113o Raiadharmakanda and other works be- longing to the Smriti digest called Krityakalpataru of Lakshmidhara.

A.D. 1131 Manazollasa by King Somesvara III Bhulokamalla.

AD. 115o--116o R-aiatarangini of Kalhana.

A.D. 115o--1225 Vyavaharanirnaya of Varadaraja.

A.D. 115o----13oo Commentaries on Gautama--Dharma- sastra and Apastamba--Dharma- sutra by Haradatta.

A.D. 115o--I3o0 Commentary on Manu-Smriti by Kulluka.

AD. 12007---»-1225 Sgiiriﬁchana, ika by Devanbiztta.

B. Homicide in Hindu Law 0:: the law of homicide in the Hindu period, the follow- ing observations of Dr. P. N. Sen would be of interestlz "Sahasa.----The word "Sahasa" is a generic term compris- Sahasa or ing Various offences having the common characteristic of delibﬁfate being attended with or accompanied by the use of force. :i'1g:§)gl:f1Sc'c In its broader sense, therefore, it included certain offences ' which would also come under other descriptions of offences, but in its restricted sense it was used to denote certain speciﬁc offences such as mischief, robbery, murder, etc., characterised by deliberate and aggressive violence. Diﬂerence Understood in this way, it differentiates itself from the between 'theft and kindred offences (steya) by the element of force gfegfa which enters into its composition; the spring of action from I which such an offence nroceeds is passion or rage. whereas in cases of theft and other kinds of offences the spring of and

1. Dr. WP. N. Sen, Hznauﬁurisprudence, (T L L 1909) 1918 Edn, pages 55°'351- 14--122 Law.

194

action is avarice; to put it shortly offences of the former kind are violent and aggressive in their character; while offences of the latter kind are generally secretive in their nature. Hence, the Mitakshara points out that although a Saliasa (or violent offence) involves either theft, or verbal abuse, or personal violence, or outrage of the modesty of a woman as an element in its Constitution yet it differen- tiates itself from them by the adjunct of aggressive vio- lence which gives it a peculiar shape, and this differentia- tion marks out that the offence should be visited with a heavier punishment. There are three different degrees oi this kind of oﬁence, of the first degree, intermediate and grave, and different degrees of punishment were prescrib- ed as appropriate to them. It was also laid down that if several persons combined in striking another, they should be visited with double the ordinary punishment, and fur- thermore he who struck at the vital part was to receive the severest sentence. In a case of Sahasa in the narrower sense, as distinguished from dandparushia and SU'L'T€C.'i'a7't~ graham difference in caste did not lead to any difference in sentence, but this must be understood as subject to the general rule, that a Brahmin could never be capttally punished, although in a proper case he might be chained or imprisoned, or banished from the country branded with marks of disgrace".

C. Capital Punishment in Hindu Period Before we deal in detail with the position regarding capital punishment at each stage of the Hindu period, it would be convenient to emphasize, by way of a rapid sur- vey, the fact that capital punishment was in vogue at almost every stage during the Hindu period.

The emphasis on "Danda" (coercive authority of the King) may be noticed. During the Vedic period (1500 to 600 B.C.) originated the doctrine of the Divine affinity of the temporal ruler.' The authority of the King was coupled with his obliga- tion towards his subjectsf and the coercive authority (danda) of the ruler was recognised as the cause of Dharma."

1. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford Uni- versity Press), (1959), page 20 ; He also refers to P. S. Deshmukh, The Origin and Development of Religfon in Vedfc Litcraitre, (Cxford University Press), (1933), Chapters 9 to 13.

2. U. N. Ghoshal,A History of Indian Political Ideas, (Oxford University Press), (I959l, page 24.

3. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford University P383) (1959), page 29- 195 In the pre-Maurya period (600 to 325 B.C.), the obliga- tion of the King to protect his subject was developed. In one of the earliest Smritis} the list of oﬁ°enders punishable with death includes those who caused injury to the seven constituents of the State, and those who forged royal edicts. etc. A King who fails to inflict punishment (danda;-') on. a guilty man. or who punished an innocent man, was, requir- ed to undergo a fasting. Some of the Pali Texts of that period, while emphasizing the importance of righteousness, also emphasised the duty of the King to protect his people?

Kautilyail explains, that a king who givesbut just punishment does not destroy righteousness. Kautilya also emphasises that danda (punishment) is the surest and most universal means of ensuring public security."

During the Maurya period (325 B.C. to 320 A.D.), follow- ing Kautilyaf' the law of treason was developed. Various acts of treason attracted the death penalty.

The Smritis of Manu and Yajnavalkya emphasized the King's duty to protect his subjects. An oft--quoted text of Manu says, that danda rules all people, danda alone protects tnem, danda is awake when others are asleep, and the wise declare danda to be identical with the law; through fear of danda all creatures, movable and immovable, "yield them~ selves for enjoyment", and swerve not from their duties. When danda is applied after due consideration, it makes all people happy, but when applied without consideration, it destroys everything. If the King does not untiringly apply danda against the wicked, the strong would roast the weaker like ﬁsh in a spit. When dtmda walks about destroy- ing sinners, the people are not disturbed, provided that its wielder discerns we1l.7 Manu, therefore, emphasised the obligation of the King to detect and punish all culprits, and included, among those punishable with death, even thieves caught with stolen goods and the implements of theft."

1. Vishnu, III 34 and V, I0 and I4, referred to in U. N. Ghoshal, A History of Indian Political Ideas (Oxford University Press), (1959), page

50.

2. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford Uni- versity Press, (1959), page 51.

3. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford Uni- versity Press), (1959), page 68.

4. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford Univer- sity Press), (1959), pages 86--87.

5. Kautilya, Book IV, 8, 9, IO referred to in U. N. Ghoshal, A History of Indian Political Ideas, (Oxford University Press), (1959), pages II7--II8.

6. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford Uni- vcrsity Press), (1959), pages 167-168.

7. U. N. Ghoshal, A History of Indian Political Ideas, (Oxford Uni- varsity Press), (1959), page 180.

8. U. N. Glioshal, A History of Indian Political Ideas, (Oxford Uni- versity Press),(1959), page 180.

196

There are interesting discussions in the Mahabharata (200 j3_C_ to A_D_ 200) about the coercive authority of the In the dialogue between Yudhisthira and Bhishrna'-' about danda. Bhishma states that danda is the means plac- ed in the hands of the King for the smooth running of all human affairs on the path of dharma.

In the address of Kaninka Bhardvaja," danda is first conceived in general terms to be a fundamental political principle and a guard of the security of person and property as well as stability of the social order. Secondly, the key to this function is the principle that fear of danda is the grand motive for the individual's obedience to authority. Then, the purpose of the Divine ordination of danda in the kings favour is stated to be the fulﬁlment of law. Thirdly, the qualiﬁcations required for the king's use of danda are discrimination and impartiality. At one place, Bhishmat asked the king to slay without hesitation a person acting against the interest of his kingdom, whoever he may be. At another place? Bhishma declared the king in whose Kingdom women are forcibly abducted, to be more dead than alive. These passages are referred to in order to show the emphasis placed in those times on protection of society.'' In the Buddhist Sanskrit and late Pali texts, one ﬁnds references relating to death sentence. One work states. that the king is one who rules and guides the world; he cen- sures, ﬁnes and executes the man who transgresses his commands; ruling in righteousness, he becomes clear to his people.7 In another work,8 Asvaghosha states, that after the birth of Buddha, Buddha's follower Shuddhodhana. while not executing criminals, kept them under mild restraint, as their release would not have been good policy."

Asoka does not seem to have abolished capital punish- mentm But it is stated," that the greatest king of the Sata- vahana dynasty, Gautamiputra Satakarni, refrained from I. Ghoshal, A History of Itaian Political Ideas, (1959), page

206.

2. Mahabharat XXII, I21.

3. Mahabharata XII, I38 ; see also U. N. Ghoshal, A History of Indian Political Ideas, (1959), page 206.

4. Mahabharata XII, 57, 5-7.

. Mahabharata XIII, 61, 31-33.

. Nagasena, Milinda-Patiha, IV, 5.27.

. U. N. Ghoshal, A History of Indian Political, Ideas, (1959), page 265. . Ashvadghosha Buddhacharita Il, I-I6.

9. U. N. Ghoshal, A History of Indian Political Ideas, (1959), page 267 ; citing the Buddhacharita ,' see also E. H. Johnson, Translation of this work, page 28, note.

10. Material relating to Asoka is discussed in detail separa:ely.

11. U. N. Ghoshal, A History of Indian Political Ideas, (1959), pages 295-296.

O0\l O\Ul 197 hurting the life even of an offending enemy, and that Rudradaman of the Saka dynasty never took life except in battle.

D. Principles of Punishment in Hindu Law The principles of punishment have been well put by Kautilya} Punishment, if too severe, alarm men; it too mild, it frustrates itself. Punishment, according to deserts should be encouraged. Punishment, properly determined and awarded, makes the subjects conform to dharma (right), artha (wealth) and lcama (desire). When improperly awarded due to ignorance, under the inﬂuence of lust and anger, it enrages even hermitg and (religious) mendicants, not to speak of householders. Punishment unawarded would verily foster the regime of the ﬁsh i.e. in the absence of the upholder of law the strong would swallow up the weak. Protected by the upholder they would prosper.

A good summing up of the objects of punishment as conceived in the Hindu period is found in a recent study."

'If we analyse the implied and explicit purposes of punishment. we find that punishment was conceived, First, as a deterrent measures calculated to strike fear into the hearts of the criminally minded and to check their immoral and anti--social passions. This purpose was served particularly by disproportionately severe punishment and by "branding", "parading" and publiciz- ing punishment. The second object was the prevention of the possibility of the cu1prit's repeating the crime. So, the culprit was imprisoned, fettered, killed, or exil- ed. Retribution may be said to be the third motive of punishment in two dii'fer::nt senses: retaliation, and making the wrongdoer suifer the fruits of his own i«:u"rma. The first is particularly noticed in the mutila- ticn of that very limb by which the wrong was done (e.g. cutting off ﬁngers or hand of a thief, the tongue of a defamer). Punishments, fourthly, are conceived to be an educative, and, therefore, a reformative process also. Sukra points out that, consistent with the Vedic teaching of non-injury to life. a culprit should be edu- cated (siksayet) and made to work. He takes a very modern socio-psychological View when he says (4.1.110):

"Such persons were corrupted by bad company. The king should punish them and always educate them back on to the right path." But punishment was thought to be, not only reformative, but also purificatory in a moral sense. This is more evident in the fact that punishment also included different forms of repentance, _"i.4 Kautilya, cited in Dr. P. K. Sen, " Penology old and new' (Tagore Law lectures 1929), (1943 Edn.), page 104.

2. D. M. Dutta, "Political. Legal and Economic Thought in Indian Perspective", in Moore (Editor) Philosophy and Culture---:East and West, University of Hawaii, 1962), pages 569, 591.

198

confession, prayer, penitential starvation, and long periods of penance (e.g. a Brahmin, while spared capi- tal punishment, had to live even as long as twelve years in the forest in austerity and celibacy to atone for murder)'.

E. Classiﬁcation of Punishment in Hindu Law The classiﬁcation of punishment in Hindu Law has been elaborately explained by Dr. P. K. Sen} 'The chapter headed Dandabhedah deals with the usual four-fold classiﬁcation based on the text of Brhaspati: Vag-Dancla, Dhig-danda, Dhana-danda and Vadha-danda.

"Vag dhig dhanam vadhas caiva caturdha Kathito dameh, Purusam vibhavam dosam J natva tam parikalpayet;

Brhaspati"

"Punishment is four-fold, namely, admonition, re- proof, ﬁne and corporal. It should be meted out after considering the offender, his pecuniary condition, and the crime committed by him."

The ﬁrst, Vag-dcmda, may be taken to mean punishing with words i.e. giving a solemn warning such as "Thou hast acted most improperly." The second, Dhig-danda, means punishing with strong censure such as "shame on thee, thou miscreant"; it differs from the ﬁrst in intensity, not in kind. The third, Dhana-danda, means punishing with ﬁne which may be of two kinds, ﬁxed and fluctuating. In cer- tain cases the ﬁxed ﬁne may easily be imposed. Certain other cases do not admit of such easy handling. Allowance must be made in the latter class of cases for some elasticity in view of repeated inclinations to offence and other cir- cumstances such as violence attending it. When the offence is accompanied by violence the punishment must be grad- ed according to circumstances, to ﬁt mathama sahasa (vio- lence of the ﬁrst order), madhyama sahasa (vio- lence of the second order), and uttam sahasa (violence of the last or extreme kind).

Vadha--d,anda requires detailed treatment. Vadha maybe of three kinds pidana, angaccheda and pramapana. Pidana (afflicting) is sub-divided into four modes: (i) tadana such as whipping or flogging, (ii) avarodhana or restraint of liberty by means of imprisonment, (iii) bandhana, restraint of liberty by chaining, fetters and the like, Without actual I. Dr. P. K. Sen, Penology old and new, (Tagore Law Lectures I929) (I943 Edn.), pages I26-I28.

199

gmprisoiiinent, and (iv) vidambanx,t.e.,exposing to ridicule and humiliation such as by shaving the head of the offender. making him ride on an ass, branding his person with L} mark denoting his offence, proclaiming his offence Wllll beat of drum, making him patrol the city, etc} ;'l':7:gCLCC}'Led(1, mutilation, may be of different limbs and organs of the body. Manu mentions ten kinds of mutila- tion. Brhaspati prescribes fourteen," referring to fourteen parts of the body which may be mutilated, namely, hand, leg, organ of generation, eye, tongue, ear, nose, half--tongue, half--leg, thumb and the index ﬁnger taken together, fore- head, upper lip, rectum and waist.

Pramapana means capital punishment. it may be cf the pure and the mixed Variety i.e., in the latter case mutilation or some other form of punishment may be combined with the death sentence. The pure variety again is of two kinds, ordinary (avictram) and extraordinary (vicitram). The or- dinary form of execution is by means of ordinary weapons such as sword and the like; the extraordinary is by means of impaling, or other awe-inspiring methods.

t is noteworthy that according to Brhaspati Vag--o'a*r2a'a, and dhig--danda, were within the jurisdiction of Vipras or Pmdvivakas, whereas artha-danrlu and Vadha-danda were within the sole jurisdiction of the King himself} F. Different kinds of punishment in Hindu Law The different kinds of punishment prescribed by the Hindu Law, and some of the principles on which they were directed to be administered, have been thus described by Dr. P. N. Sen? "Yajnavalkya speaks of four classes of punishment, viz., censure, rebuke, pecuniary punishment and corporal punishment, and says that these should be used either separately or jointly according to the nature of the crime. Of these, mere censure was the lightest form of punishment and rebuke came after it, pecuniary punish- ment included fine and forfeiture of property and corporal punishment included imprisonment, banishment, branding, cutting of offending limbs, and lastly death sentence. It goes without saying that the measure of punishment depended chieﬂy on the gravity of the offence; if the offence be not very serious, the punishment must be light, while if the offence be serious the punishment must be severe in 97 cu . 1):: daviv k', G.".c£\'»'ad's Oriental Series, Vol. 52, page 20. . Danda\'i\'cka, Gac1<wzid's Oriental Series, Vol. 52, page 21. . Dandavivcka, prge I2.

-agate»-4,' . Dr. P. N. Scn, Hindu Jurisprudencc, (Tagore Law Lectures, x909). (1918 E«;1n.), pages 342-243.

200

G. Arguments against capital punishment in Hindu Law Arguments against capital punishment are also met with. This extract from an authoritative study may be seen1 : -

'It would be no exaggeration to say that the mind of the intelligentsia must have been agitated on the propriety or expediency of capital punishment. An in- teresting evidence of this is to be found, in the Maha- bharata (Chapter CCLVII of the Santiparva) in which there is a discussion between King Dyumatsena and his son Prince Satyavan. A number of men having been brought out for execution at the Command of his father, Prince Satyavan gives vent to his thoughts thus:

"Sometimes virtue assumes the form of sin and sin assumes the form of virtue. It is not possible that the destruction of individuals can ever be a virtuous act."

Thereupon Dyumatsena observes, "If the sparing of those who should be killed be virtuous, if robbers be spared, O Satyavan, all distinction between virtue and vice will disappear". Satyavan rejoins, "Without des- troying the body of the offender the King should punish him as ordained by the scripture. The King should not act otherwise, neglecting to reﬂect upon the character of the offence and upon the science of morality. By killing the wrongdoers, the King kills a large number of innocent men. Behold! By killing a single robber, his wife, mother, father and children, all are killed. When injured by wicked persons the King should, therefore, think seriously on the question of punishment. Some- times a wicked person is seen to imbibe good conduct from a pious person. It is seen that good children spring from wicked persons. The wicked. therefore, should not be exterminated. The extermination of the wicked is not in consonance with eternal law. By punishing them gently, by depriving them cf all their riches, by chains and imprisonment, by disﬁguring them they may be made to expiate their offences. Their re- latives should not be punished by inﬂicting of capital punishment on them.' The sentiment and reasoning against capital punishment is found in Sukraf according to whom. this bad practice violates the Vedic injunction against taking any life, and should be replaced by imprisonment for life. if necessary, and a natural criminal should be transported to an island, or fettered and made to repair the public roads. Fa Hsien I. Dr. P. K. Sen, "Penology old and new", (Tagore Law. Lectures I929, I943 Edn-), pages 93-94.

2. Sukranitisara 4-I. 92--<IO8, referred to in D. M. Dutta, "Pol-Erica, Legal and Economic Thought in Indian Perspective ", in Moore, (Editor) Philosophy and Cu1ture---East and West (University of Hawaii), (1962);

pages 569. 590- 201 did not find any capital punishment in India (399400 All) but ﬁnes were there, and mutilation in cases of treason.' Nevertheless, it seems that, at various periods in _ the history of ancient India, capital punishment was one oi the recognised modes of punishment-

H. Capital punishment for various crimes in Hindu Law (According to Jolly) Jolly's observations as to the crimes regarded as capital are interestingg:

'The punishments for theft are very heavy. In all Theft.

cases of serious crimes the accused is sentenced to death: he is impaled, hanged or drowned and often his hands are hacked off and other tortures are inﬂicted for the purpose of aggravating the punishment. The same. punishments are ordained also in the case of burglary, frequently repeated instances of picking pockets, rob-

bery, stealing cows, horses or elephants or more than 10 Kumbhas of grains, more than 100 Palas of precious metals, particularly valuable jewels or stuffs, etc. (Y. 2, 273, M. 8, 320, f; 9,276 ), 280; Brh. 22, 17-19, etc.).

"Forging of royal grants and even of private documents Capital is punished by death (Vi. 5, 9f; M.9, 232); the king punishment should have a dishonest goldsmith cut to pieces, i.e., f0? Other according to the commentaries, those who use false °"meS' weights, touchstones, alloys and practise other kinds of frauds (M. 9, 292). In determining the magnitude of the punishment according to the value of the stolen property often three grades are distinguished. Thus Var,-Gus Y. 2. 275 speaks about the theft of small, middling or punishments large properties and similarly speak Nr. 14, 13; 15, 6; f0? 'lg?' App. 29 and Brh. 22m 24. Enumerations of objects of f§°?1§e"','a%ue about equal value are generally given along with data of the about the punishments for misappropriating the same, Stolen pm- which, besides the already mentioned cases of capital Petty' punishment, consist of the hacking off of a hand or a foot and other kinds of mutilation and ﬁnes in most cases amounting to many times the value of the stolen property. No distinction is made between robbery and theft as regards punishment and moreover taking part in these crimes, abetting of every kind or refusing to render help is regarded as equally criminal (Nr. 14, 12, 19 f, Y 2, 276, etc)'.

I. D. M. Dutta, "Political, Legal and Economic Thought in Indian Persncctivc ". in Moore, (Editor), Philosophy and Culture--_East and Wes: (UnlV'»ifS1[y of Hawaii), (1962), pages 579, 590.

2. Jolly, Hindu Law and Custom, (1928), page 273 ez seq.

202

I. References from Mainu From the Manusmriti it appears that capital punishment was awarded for theft of more than 10 "kumbhas"l. Rape by a man of the lower caste with a woman of the higher caste was a capital offence." Brahmins were not subject to the death penalty." Mutilation of the particular offending limb was also prescribed by Manuf' J. Capital punishment and Buddhist rulers It would appear, that in the fourth century B.C., capital punishment was in force, and death penalty without torture was administered for crimes accompanied with cruelty?' Though, in the Buddhist period, the doctrine of Ahimsa (non-violence) became prominent, the Emperor Asoka does not seem to have abolished capital punishment totally. Re- ference to capital punishment is found in his edicts."

Vincent Smith7 observes---

"The most pious Buddhist and Jain Kings had no hesitation about inﬁicting capital punishment upon their subjects, and Asoka himself continued to sanction the death penalty throughout his reign. He was con- tent to satisfy his humanitarian feelings by a slight mitigation of the sanguinary penal code inherited from his stern grandfather in conceding to condemned per- sons three days' grace to prepare for death."8 Asoka's Pillar Edict IV has been thus translated":----

'For as much as it is desirable that there should be uniformity in judicial procedure and uniformity in penalties, from this time forward my rule is this-- "To condemned men lying in prison under sentence of death a respite of three days is grant-

ed by me".

During this interval the relatives of some of the condemn- ed men will invite them to deep meditation, hoping to save their lives or in order to lead to meditation him about to die, will themselves give alms with a View to the other I. Mann 8, verse 320.

2. Mann 8, verse 366.

3. Menu 8, verses 379 and 380.

4. Mann 8, verse 125.

5. Sec B. R. Ramchandra Dikshitar, Mauman Polity, (Madras Uni- versiy Historical Studies), (1953), pages 167-168.

6. The edicts of Asoka are collected by D.C. Sircar, Inscriptions of Asoka, G()\'CrnmCnt of India, (1957).

7. Vincent Smith, Early History of India, (4th Edn.\, page 185.

8. Pillar Edict, IV.

9. See Vinccnt Smith, Asaka, (2nd Edn.), page 186.

1703

world or undergo fasting. For my desire is that even In the time of their conﬁnement the condemned men may gain the next world and that among the people pious prac- tices of various kinds may grow including self-control and distribution of alms.' There is a somewhat different version of. this Edict given by some authors. Thus, Bhandarkarl gives the tol- lowing translation:--

"And even so far goes my order: to men who are bound with fetters, on whom sentence has been passed and who have been condemned to death, have I granted three days as something rightfully and exclusively their own. (In that interval) (their) re- latives will indeed propitiate some (of the Rajukas) in order to grant their life; and to propitiate Death, they (i.e., the convicts) will give alms and observe fasts pertaining to the next world? For my desire is that even when the time (for their living) has expir- ed they may win the next world and that manifold pious practices, self--restraint and liberality may thus grow among the people."

In a recent study3, the position is thus stated:-----

"Continuing his efforts to secure greater welfare for his subjects, he orders a respite of three days be- fore a death sentence is carried out. This is an act of grace, since he recognizes that this time may, in certain cases, be utilized to prove the innocence of the condemned person or to secure his repentence. It is curious that, despite his ﬁrm belief in Buddhism, he did not abolish capital punishment. Doubtlessly he regarded capital punishment as essential to the maintenance of law and order, and, despite his per- sonal convictions to the contrary, felt that justice in the state must be based on recognised painful punish- ments or pleasurable rewards4."

The following translation of Pillar Edict IV of Delhi- Topra is given in a recent work5:--

"And my order (reaches), even so far, (that) a respite of three days is granted by me to persons lying

1. D.R. Bhandarkar, Ashoka, (Carmcihael Lectures, 1923), (University of Calcutta, 1932), page 342.

2. This is the most knotty passage. See D.R. Bhandarkar, Ashoka, page 345, annotation 7.

3. Romila Thapar, Asoka and the Decline of the Mauryas, (Oxford Uni- versity Press),( 1961), pages 176-177 (See page 263 for translation of the Edict .

4. There is an interesting passage in the Mahabharata (Santi Parva,

259), which expresses an attitude very similar to Asol<a's attitude in this matter. According to the Chinese travellers, capital punishment was abo-

lished in later centuries.

5. Saletore, Ancient Indian Political Thought and Institutions, (1963) pages 570. 670, citing E. Hultzch, Corpus Inscriptionum lndicarum Vol. 1, page 125.

204

in prison on whom punishment has been passed; (and) who have been condemned to death. (In this way) either (their) relatives Will persuade those (Rajukas) to (grant) their life, or if there is none Who 10€1'SUad€'S (them), they will bestow gifts or will undergo fasts in order to (attain happiness) in the other (word). For my desire is this, that, even when the time (of respite) has expired, they should attain (happiness) in the other (world)."

This is the translation of the Edict given in that studylz "Thus speaks the Beloved of the Gods, the king Piyadassi: When I had been consecrated twenty- six years I had this inscription on Dhamma engrav- ed. My rajukas (rural oiﬁcers) are appointed over many hundred thousands of people. In judgment and punishment I have given them independent author- ity, so that the rajukas may fulﬁl their func- tions calmly and fearlessly and may promote the welfare and happiness of the country people and bone- ﬁt them. They will learn what makes for happiness and unhappiness and together with those devoted to Dhamma, they will admonish the country people that they may obtain happiness in this world and the next. The rajukas are eager to obey me and they will like- wise obey my envoys who know my wishes. These likewise will admonish (the erring rajukas) so that they will be able to give me satisfaction.

Just as one entrusts his child to an experienced nurse, and is conﬁdent that the experienced nurse is able to care for the child satisfactorily, so my rajukas have been appointed for the welfare and happiness of the country people. In order that they my fulﬁl their functions fearlessly, conﬁdently, and cheerfully, I have given them independent authority in judgment and punishment. But it is desirable that there should be uniformity in judicial procedure and punishment.

This is my instruction from now on: Men who are imprisoned or sentenced to death are to be given three days respite. Thus their relations may plead for their lives. or, if there is no one to plead for them, they may make donations or undertake a fast for a better rebirth in the next life. For it is my wish that they should gain the next world. And among the people various practices of Dhamma are increasing, such as self-control and the distribution of charity."

The view that Asoka abolished capital punishment is therefore a misconception?

'I. Romila Thapar, Asoka and the Decilne of the:l:lauryas, OxfoVrdrU--n'i- versity Press, (1961), pages 263-264.

.2. See B._ R. Ramchandra Dikshitar, "Maurvarl Policy", (Madras Uni- versity Historical Studies), (1953), pages 167-168.

205

(Asoka came to the throne about 270 B.C., according to the generally accepted view').

It may be noted, that when Magasthenes was in India {i.e. some tiiiie between 30'/_' and 288 BC.) the severest pen- alties 'czere imposed, having regard to the needs of the age'.

Kautilya advocated the death penalty, though only in speciﬁed cases".

One may also refer to the views of Prince Shotoku (Japan) (604 A.D.), who thought his "SeVenteen--Articles Constitution" was based on the spirit of Buddhism", wrote:----

"Light crimes should be embraced by our power of reforming inﬂuence, and grave crimes should be surrendered to our power of strong force".

King Harsha (seventh century) inflicted capital punish- ment on all who ventured to slay any living creature?

K. Maratha period Impaltng and Trampling under Feet by Elephants:

As to the Maratha period, Jolly has observed'':----

" . . . . . . .. Of the death sentences, impaling, which is mentioned also in the Mah., Rajatar, and in the literature of fables, was in vogue for instance in Gol- conda even in the 17th Century, in Kolhapur until the period of British rule7, and the trampling down by elephants mentioned also in Mriccha, 146 and the Jatakas (Rausboll) l, 199 if, was universally practis- ed in the Mahratta statess. Moreover under Mahratta rule, specially in Central India, the following are said to have been the customary punishments : ﬁnes, ﬂogg- Various ing, imprisonment, putting in stocks, forfeiture and punishments sale of the whole property, amputation of hands, fin-- in Marhma gers or nose and other corporal punishments; the p°"°d' hands of a forger of base coins were crushed with one blow of the hammer which is apparently a symbolical I. See Sir cinries Elliott, Hinduism and Buddhism, (1957), voi. 1, page 266, foot-note 4.

_2. See S_a1e_toi~e, Ancient Indian Political Thougnt and Institutions, (1963), (Asia Publishing House, New York), pages 536, 544.

3. Saletore, Ancient Indian Political Thought and Institutions, (1963) page 570, citing Kautilya, Book IV, Chapter XI, pages 256-258.

4. Nakamura, "Basic features of the legal political, and economic thought of Japanf', in Moore', (Editor), Philosophy and Cultute--East and West, (University of Hawaii), (1962), pages 631, 636, 638.

5. Encyclopaedia of Religions and Ethics, Vol. 4, page 284.

6. Jolly, Hindu Law and Custom, (1928), page 283, er mg.

7. B.G. 24, 267.

8. LC.

Smritis followed in Nepal, 206 punishmentl. Fines were particularly in vogue in Raj- putana according to Todz, in Mysore according to Dubois" and in Kolhapur according to the Gazetteer; among the Prayascittas ﬁnes still play the chief role, cf. article 37. In Nepal, besides the very frequent ﬁnes sometimes amounting to the conﬁscation of _the whole property, banishment and detracting punish- ment such as the shaving of the hair (article 42) 35 well as the horrible multilation and death-sentences of the Sr:m't~;s are still in vogue."

The position in Mahratta times was as follows4:----

"For great crimes, the Sursoobedars had the power of punishing capitally; Mamlitdars in such cases re- quired the Peishwa's authority. The great Jagherdars had power of life and death within their respective territories. Bramins could not be executed; but state prisoners were poisoned, or destroyed by deleterious food, such as equal parts of ﬂour and salt. Women were mutilated, but rarely put to death. There was no prescribed form of trial; torture to extort confes« sion was very common; and confession was generally thought necessary to capital punishment. The chief authority, in doubtful cases, commonly took the opi~ nion of his ofﬁcers; and some Mamlitdars in the Satara country, under both the Pritee Needhee and Peishwa, employed Punchayets to pronounce on the innocence or guilt of the accused; but this system can only be traced to the time of Shao; and though so well worthy of imitation was by no means general, nor are its be- neﬁts understood or appreciated in the present day."

An interesting incident may be referred to in this (On- nection5. Soon after the death of Madhavrao I, it was sus- pected that Ragunathrao was privy to the murder, and he asked Ram Sastri (the celebrated Chief Justice of Poona) what was the penalty for the act. Ram Shastri not only declared that capital punishment was the only penalty for the offence, but declined to serve any longer under a Peshwa who had murdered his own nephew. This was roundabout the year 1774. Later on, in 1779, he was induc- ed to return to Poona to resume his work, with an annual salary of Rs. 2,000 and an allowance of Rs. 1,000 for his palankeen.

I. Grant, C. P. Gazetteer 70 f.; Malcolm, A Memoir of Central India, 2nd Edn.,I, 558.

2. Annals of Raiasthan, 1, 142 f.

3. People of India, 499 f.

4. James Grant Duff, History pages 236--237.

of the Mahrattas, (1912), Vol. 2,

5. See D. B. Parasnis, Note in Appendix II. Kincaid and Parasn is, A History of the Maratha People, (1931), pages 475-476.

207

Dr. Coates Residency SUFQCOU 111 POOU3» '-'0n'31"1l5'tv"«e'l in 1819, some valuable notes on the administration of jus- tice in Poona to the Bombay Literary S0C1€'EY. qU0*~9'©l be' lOVV1Z----

"The criminal court was composed ot 'a Bl'&!l1.,1':1]ll president, some Brahniin clerks. and a snastrz. Its niece of proceeding. if the accused were protessed thieves or old otienders; was summary, and had sometning or a sanguinary character. It Was always ©SS€T1t1'~il U' Conviction that the ofiender should confess his guilt. and the investigation turned much on this. The tacts and evidence were all taken down in writing by kar- kzma (clerks), and persuasion and threats were used from time to time to obtain confession. If this failed, and when from the evidence recorded there appeared little doubt. of the fault of the accused, torture was employed and he was flogged, and chilli bag was put to his nose etc. If he persevered in his declaration or innocence, he Was sent back to prison. put in the stocks, and allowed only a very scanty subsistence; and after an interval was brought forward again and again to try to get him to confess. This refers chieﬂy to Ramoosis, Mangs, and persons of bad charac'i:r. In other cases the proceedings were conducted with more deliberation and forbearance: and there were probasiy few instances where those entirely innocent were made to suffer. Persons accused of robbery and theft were readily admitted to bail, if the bondsman made him- self responsible for the lost property in cases of con- viction. Murder was not bailable, unless a compro- mise was made with the friends of the deceased. The accused might summon what evidence they pleased, but were not allowed to have any intercourse with them. When the offender had been convicted on his own confession, the president, the shastri, and the Brahmins of the court. in ordinary cases, awarded the sentence; and in intricate cases this was done by a body of learned shastris, sometimes in the presence of the Peshwa. No severe punishment was inﬁicted till the case had been submitted to the Peshwa for his approval. Brahmins of course, whatever their crimes, were never put to death, or subjected to any punish- ment considered ignominious. For small crimes they were often merely reproved, ordered to dispense cha- rities, and perform religious penances; or were sub- jected to slight ﬁnes, imprisonment, or ﬂogging: those of a deeper die were heavily ﬁned, or confined in hill forts, sometimes in irons, where the climate and their scanty and unwholesome food commonly soon put an end to them: and their property was sequestrated, and their sins visited on the children. Gangs committing I. D. B. Parasiiis. Note in Appendix II, Kiiicaid :1ndParasn's, A History of the Maratha Peop1e.(i_o3I), page 476.

208

murder. highway robbery, and houseubreaking, were punished by death, and their bodies hung up on the sides of roads: other professed incorrigible thieves were punished, according to the extent of their crimes, by the cutting off of a ﬁnger, or hand, or foot, or both, and left to their fate. Perjury was punished by the perjurer being made to make good the loss that de- pended on his false oath. and paying a ﬁne to Gov- ernment. Forgery, by the Hindu Law, ought to have been punished by the cutting off of the right hand; but this, like almost every crime at Poona, was com- mutable for money. Women were never punished by death for any crime. Turning them out of their castes, parading them on an ass with their heads shaved, cutt- ing off their noses, etc., were the usual punishments."

APPENDIX XXIV CAPIIAL PUNISHMENT IN INDIA DURING THE MUSLIM PERIOD I.--IN'rRonUc'roRY During the Muslim times (Mughal times) the main svstem of criminal law administered was the Quranic one. The system had originated and grown outside India. Its main sources were the Quran as supplemented and inter- preted by case~law and opinions of jurists. Since all the three sources were "trans-Indian",1 it became necessary for Indian Qazis to have a digest of Islamic law. The last such digest was the Fatawa-i-Alamgiri compiled by a syn- dicate of theologians under the orders of Aurangzeb~'z That portion of the Islamic Criminal Law which con- stituted the crimes in the estimation of all nations. was applied to Muslims and non-Muslims alike, e.g. adultery, murder, theft, etc".

In the Mughal period, Muslim sovereigns used to ad- minister justice in person. Thus, Sultan Muhammad Tugh~ laq constituted himself the Supreme Court of Appeal and used to keep four Muftis, to whom he used to say that they should be careful in speaking that which they con- sidered right, because if any one should be put to death wrongfully the blood of that man would be upon their head. If they convicted the prisoner after long discussion, he would pass orders for the execution of the prisoner".

I. Jadunath S rkar, Mughal Administration, (1952), page 100.

2. Jadunath Sarkar, Mughal Administration, (1952), page 21.

A3. Wahed Husain, Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), page 15.

4. Wahed Husain, Administration of Justice during the Muslim Rule in India,(University of Calcutta), (1934), pages 20-21.

269

Akbar's idea of justice may be gathered from ms ms- truetions to the Governor of Gujarat that he should not talte away life till after the most mature deliberations'. The Emperor himself was the ﬁnal Court of Appeal, and vcne ne appeared in front of his window every morning, i'. open to any one to demand 'justice oersonally---- though the demand was seldom made?

Akbar was keen to lay down, that capital puni~:l1m:1?.t was not to be accompanied with mutilation or other cruel- ty. and that. except in cases of dangerous sedition, the Governor should not inflict capital punishment until the proceedings were sent to the Emperor and conﬁrmed by him".

In the time of Jehangir. no sentence of death could be cawied out without the conﬁrmation of the Emperor".

It has been stated that the lands of the Moghuls isrcre, or.» :he whole, well policed".

Capital punishment. it is stated, was almost totally ign- known under Aurangzeb5.

Under the dictates of anger and passion he never lSSU.€d orders of death7.

The Farmans issued by Emperor Aurangzeb to the D;?'»van of Gujarat on the 16th June, 1772 gives 3 small Code of offences."

The first Indian Law Commission first prepared the draft of Penal Code before Macaulay's departure for England in 1837. But the Penal Code could actually be passed only in 1860. It was based on the draft proposed by Macaulay's commission and revised by Bethune. the legal member of council, and Sir Barness Peacock".

I.'\:<'/ahed Hussain, Administration of Justiceﬂdurrinygl theWMuslim in India, (University of Calcutta), (1934), page 33, citing Ayin--i-Akbari, Vol. I. page 254.

2. '.'ringl-3 Kennedy, Histor)' of the Great Mughals, (1905), Vol. 1, page

308.

3. Wahed Husain, Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934). page 33: citing Elphinstone, History of India, pages 532-533. Letter of Instructions to the Governor of Gujarat.

4. Wahcd Hussein, Administration of Justice during the Muslim Rule in India. (University of Calcutta), (1934), page 41.

5. Pringle Kennedy, History of the Great Moghuls, (Thacker Spink & Co.. Calcutta), (1905): Vol. 2, page 3.

6. Wahed Hussain, Administration of Justice during the Muslim Rule in India, (University of Calcutta), (1934), page 53; referring to Alexander Doxv, History of India.

7. Pringle Kennedy, A History of the Great Mughals, (1905), (Thacker Spink & Co., Calcutta), Vol. 2, page 77.

>2. Full discussion will be found in J. N. Sarkar, Mughal Administration» (1952), pages 122-130.

9. Cambridge History of India, (1958), Vol. VI, page 384. Also S08 prge %.

15-122 Law 210 The Indian Penal Code was, it is said, inﬂuenced by the French Penal Code and the Code of Louisianal; but the foundation was the English law divested of technicalities. Until it was enacted for a long time, the substantive law 0} the criminal courts consisted of the Muslim law, with modiﬁcation made in some respects by the Regulations?

The general criminal law enforced in the Upper Pro- vinces also (until the Indian Penal Code was enacted) was the Muhammadan law as altered by British regulations and judicial decisions".

Even in Madras, "for want of anything better" the Muhammadan criminal law as interpreted by law officers and modified by enactment was applied until the Penal Code came into force"-5.

It was only in Bombay that an attempt had been made to codify the criminal law in 1827 by a Regulation".

In view of this position, it is desirable to study briefly the Muslim criminal law.

The position regarding the criminal law applicable be- fore Indian Penal Code is thus stated7:--

"By Warren Hastings' plan in 1772, the Muham- madan Criminal Law was retained in the Criminal courts subject to the interpretation of Government, or of the subordinate English functionaries, where its provisions were manifestly unjust. In 1790, when the Governor-General accepted the Nizamut of Bengal, the Criminal Courts then established were directed to pronounce sentence according to the Muham- madan law; and in cases of murder according to the doctrines of Yusuf and Muhammads, as has been al- ready noticed. The Muhammadan law was further ordered to be continued in the like manner in the Criminal Courts established in 1793"."

"In 1832, it was enacted in Bengal that all per- sons, not professing the Muhammadan faith, might claim to be exempt from trial under the provisions of I. Cambridge Historyyof India, (1958), Vol. VI, page 387.

2. See Field, The Regulations of the Bengal Code, (1875), (Thacker Spink & Co.), page 175, paragraph 240.

3. Cambridge History of India, (1958), Vol. VI, page 79.

4. Cambridge History of India, (1958), Vol. VI, page 43, middle,

5. For example, see Madras Regulation 7 of 1802 (section 15), Mad- ras Regulation 8 of 1802 (section 9 to II), Madras Regulation 15 of 1803 (Preamble).

6. Bombay Regulation 14 of 1827.

7. William H. Morley, Administration of Justice in British India, (1858), pages 185-186.

8. Bengal Regulation XXVI, 1790, sections 32-33.

9. Bengal Regulation IX, 1793, sections 47, 50, 74, 75.

211

the Muhammadan Criminal Code for offences cogni- zable under the general Regulations'.

At Madras, in the year 1802, provisions were made respecting the administration of the Muhammadan Criminal law in the Courts of the East--India Company, similar to those enacted in Bengal by Regulation 9 of 1703".

The Criminal law administered in the Company's Courts at Bombay previous to 1827, was ordered to be regulated by the law of the accused party: Christians and Parsis to be judged on the principles of the Eng- lish law, and Muhammadans and Hindus according to their own particular laws3. The Muhammadan law was to be regulated by the Fatwa of the law officers, which was directed to be given according to the doc- trine of Yusuf and Muhammad; respect which, and the law of the Hindus, the Judges were enjoined to refer to the translation of the Hidayah by Hamilton, and of the Hindu laws by Halhed and Sir William Jones; as likewise to a tract entitled "Observations", which then constituted part of the criminal Code for the province of Malabar and Salsette; etc." In 1819, the Hindu Criminal Law was directed to be adminis- tered to Hindus in the special Court'. The Native Cri- minal Laws were abolished in the Bombay Presidency in 1827, and a regular Code substituted in their place.

The Muhammadan Criminal Law, even when first reserved to the natives of the British territories in India, was subjected to many important restrictions in its application; and it has been so modiﬁed by the subsequent Regulations in the Presidencies of Bengal and Madras as to present no vestiges of its sanguinary character, and but few of its original imperfections?"

i. Bengal Regulation VI, 1832, section 5.

2. Madras Regulation V11, 1802, sections 15, 16,

3. Madras Regulation VII, I802, sections 9, 10, II;

Bombay Regulation V of 1799, section 36;Bombay Regulation III, of 1833, section 36; Bombay Regulation VII oi 1820, section 17.

4. Bombay Regulation of 1799, sections 36, 39; Bombay Regulation III, of 180:), sections 36--39; Bombay Regulation VII, I820, sectionss 17---2o.

5. Bombay Regulation X of 1819.

6. The right existing in the Government to alter the Muhammadan law appears to have been virtually recognised by the 13th Geo. III, C. 63 section 7, vesting in it authority for the ordering, managing, and governing, in like manner (as the Act recites), to all intents and purposes whatever, as the same now are, or at any time heretofore might have been exercised by the Presi- dent and Council in Select Committee" because it was then before the Legis- lature that the President and Council had interposed, and altered the Criminal Law of the Province in 1772. Such alterations, and all future necessary amendments thereof, appear, by the above clause, to be legally sanctioned. See Fifth Report from the Select Committee of the House of Commons, .1812, page 40.

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II.--MUsL1M LAW AS IN FORCE AT THE ADVENT or BRITISH' RULE General picture For the present purpose it is unnecessary to give a detailed discussion of the theory of punishment in Muslim Law. But the following brief extracts from an authorita- tive book will sufﬁcel, to give a general picture:-

Classiﬁcation of Crimes According to Muslim ideas of jurisprudence crimes-

fall into three groups, namely:--

(a) offences against God,

(b) offences against the State, and

(c) offences against private individuals.

Punishment for the ﬁrst of these classes is "the i right of God (Haqq Allah)", while for the other two classes of offences the injured party may forgive or compound with the wrong--doer. Thus, curiously enough, manslaughter is not a violation of God's law nor of the king's peace, but only a damage to the family of the murdered man, which can be settled by paying money compensation (called "the price of blood") to the next of kin of the victim, Without the Executive Head of the State or the Judge of Canon Law having to take any further notice of it. It was only when the relatives of the murdered man refused to accept money damages and insisted on retaliation, that the quazi had to pronounce the sentence of death and the execu- tive to enforce it.

The Institute of Timur puts the matter with great clearness and force. He writes=--

"Robbers and thieves, in whatever place they might be found, or by whomsoever detected, I commanded to be put to death." (Note: This, how» ever, was not in exact accordance with Quranic law.) And I ordained that, if any one seized by vio- lence the property of another, the value of that property should be taken from the oppressor, and be restored to the oppressed.

Concerning other crimes--the breaking of teeth, the putting out of eyes, the slitting and cutting olf of the ears and nose, wine drinking and adultery,--1 ordained that whoever should be guilty of these, or other crimes, they should be brought into the courts of the ecclesiastical and lay judges--(the exact terms being Qazi-i-Islam and Qazi-i--Ahdas,--ahdas meaning I. ladunath Sarkar, Mughal Administration, (1952),"page's :31 toxic':-9:

213

"ritual impurity"); that the ecclesiatical judge should decide on those causes which are determinable by the sacred laws (Shara), and that those which did_ not fall under his cognizance (urﬁ bashad, i.e., pertain to the customary or secular law) should be investigated and laid before me by the lay judge." (Davy's Insti- tutes of Timur, pages 251 and 253, corrected by refer-- ence to the Persian text).

Description of punishments allowed by Muhammadan law The punishments for crimes were of four classes:--

(a) Hadd.

(b) Tazir.

(c) Qisas.

(d) Tashhir.

Hadd (its plural being hadud), means a punishment prescribed by Canon Law and considered as 'the right of God', which, therefore, no human judge can alter.

Hadd must take certain prescribed forms of punishment, viz;

(i) Stoning to death for adultery; scourging for fornication [100 stripes].

(ii) Scourging for falsely accusing a married woman of adultery [80 stripes].

(iii) Scourging for drinking wine and other intoxi-

cating liquors. For a free man the punishment was 80 stripes for wine drinking.

(iv) Cutting oﬁ the right hand for theft.

(V) For simple robbery on the highway, the loss of hands and feet; for robbery with murder, death either by the sword or by cruciﬁxion.

Tazir is punishment intended to reform culprit . . . . . . .. tazir is inflicted for such transgressions as have no hadd punishment and no expiation prescribed for them. The kind and amount of tazir is left entirely to the discretion of the judges . . . . . .The Judge can completely remit the tazir. The process of trial is simple in contrast to that for hadd. Hence attempt was often made to escape tazir by bribery [Ency. Islam iv. 710].

It was not the "right of God". It could take one of these four forms:--

(i) Public reprimand (tadib).

(ii) Jirr, or dragging the offender to the door [of the court house?] and exposing him to public scorn;

somewhat like putting a man in the pillory,

(iii) Imprisonment or exile.

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(iv) Boxing on the ear; scourging. The stripes must not be less than 3, nor more than 39 (or 75 according to the Hanaﬁ School, as in Abu Yusui').

We are told in the Hedaya, a Persian compilation of Islamic law according to the Hanaﬁ school of jurists drawn up by Mulla Tajuddin, Mir Muhammad Hussain, and Mulla Shariatullah about 1780, that the above punishments should be inﬁicted according to the offender's rank, and that imprisonment and scourging were to be conﬁned to the third and fourth grades of the people, the petty traders and common labourers, respectively, (or as Manu would have put it, the Vaishyas and Shudras),--while the lighter forms of punishment were reserved for the nobility and gentry; (Hedaya, 203-204; full details in Hughes, 632-634).

As for tazir--bil-mal or 'chastisement in property' z'.e. ﬁne, only Abu Hanifa pronounces it to be legal, but all other learned men reject it as opposed to the Quranic law. (Hedaya, 203) Aurangzeb, who was a strict Hanaﬁ and himself well--read in Canon Law and the literature of pre- cedents (fatawa), issued an order to the diwan of Gujarat and also of other subahs, in 1679, to the effect that as ﬁne was not permitted by Canon Law, every civil official (amal), zamindar or other person found guilty of an offence, should, according to the nature of his act, be impri- soned or dismissed or banished, but not punished with ﬁne, (Mirat-i-Ahmadi, i. 293).

Private vengeance, public degradation, etc. Qisas or retaliation: This was the personal right of the victim or his next of kin, in the case of certain crimes notably murder. If he demanded the legal punishment, the qazi was bound to inﬂict it, and neither he nor the king could exercise the_royal clemency by modiﬁcation or abrogation of the sentence. If, on the other hand, the next of kin of the deceased was satisﬁed with the money damag- es, called "price of blood" (Arabic diya) offered by the murderer, or pardoned him unconditionally, it was his look-out, and neither the qazi nor the king was to take any further notice of the crime. For minor oﬁence, the retalia- tion was, as laid down by the Mosaic law, "a tooth for a tooth and an eye for an eye", with certain exceptions. (Hughes, 481, Encyc. Ist. ii. 1038).

Tashhr or public degradation was a popularly devised punishment of universal currency throughout the Muslim world and even Hindu India and Medieval Europe. It is neither recognised nor condemned in the law-books of Islam, but was inflicted by all Muslim qazis and kings, and even by the lay public, as it was a mild form of lynching:

'In India, the offender's head was shaven, and he was mounted on an ass with his face turned towards its tail, covered with dust, sometimes with a garland of old shoes 215 placed round his neck, paraded through the streets with noisy music, and turned out of the city. "The judge may blacken the face of the culprit, cut his hair or have him led through the streets, etc." [Encyclo, Islam, i. 132.]. This last refers to the Arabian practice.

As for offences against the State, such as rebellion, peculation and default in the payment of revenue, the sovereign inflicted punishment at his pleasure, because the Quranic law gives no guidance here. Among the prevalent modes of putting an offender to death were having him trodden to death [the last being also sanctioned by medie- val English law]. Tortures of various degrees of ingenuity were resorted to. Theft (sarqa) is punishable with the cutting off of one hand one foot. But if the oﬁender has robbed and killed, he is to be put to death. . . .and his body publicly exposed for three days on a cross or in some other way. The punishment of death is here considered a haqq Allah and blood--money is out of the question. All accom- plices are punished in the same way. The judge can inﬂict the above punishments, as hadd, only when all the legal conditions are fulﬁlled. The legal inquiry has to be con- ducted, witnesses are necessary, or a confession. If the thief has given back the article stolen before the charge is made, he is immune from punishment [Ency. lst, iv. 173- 174].

The capital sentence (qatl) is inﬂicted, after the offence has been legally proved, in the following casesI--

(i) When the next of kin of a murdered person demands the life of the murderer (qisas) and refuses to accept the alternative of money compensation (diya or 'price of blood');

(ii) in certain cases of immorality; the woman sinner is stoned to death by the public (Ency. 1st, s. V. zina, iv. 1227);

(iii) on highway robbers . . . . . . . . . . . . . . . . . . . . . . ..

. . - a . - . . o - . o o . - u The Muslim Criminal Law compared more favourably with the English Criminal law as it was in force at that time. The English law still prescribed barbarous punish- ments and contained some glaring anomalies, while, as Hastings had declared, the Muslim law Was founded 'on the most lenient principle and an abhorrence of blood- shed". ' I. Nlonckton Jones, Hastings in Bengal, page 331, cited by Aspinall, Cornwalliu in Bengal, (Manchester Universlty Press), (x931), page 61.

216

A brief summary of Muslim law of homicide is quoted below from one study':----

The law of murder, for example, needed radical altera- tion if life was to be made secure. Abu Hanifa, whose opinions were generally accepted by the Bengal Judges. had drawn a sharp distinction between the two kinds Of homicide known by the terms Amd (wilful murder) and Shabih--amd (culpable homicide not amounting to murder), although such distinction was not recognised by the Quran. The distinction was based on the method by which the crime was committed. If a man killed another by striking him with his ﬁsts, throwing him from the upper floors of a house, throwing him down a well or into a river, strangling him, or with a stick, stone, club, or any other weapon on which there was no iron and which would not draw blood, he was guilty only of shabih-amd, not of murder. and he could not be capitally punished? A man was guilty of murder only if he used a dab (knife) or some other blood-drawing instrument, and was liable to be sentenced to death3. Persons 'guilty of shabih-amd were merely sentenced to pay the blood-ﬁne to their victims' relatives if those relatives chose to accept it. Abu Hanifa. however. had declared that if a man repeatedly committed murder by strangling, he might be executed'. Abu Hanifa, who was born in the eightieth year of the Jejira, had never taken part in the administration of justice, though he had been greatly revered as a virtuous and scholarly theologian. It was said of him that he left his writings and opinions open to the correction of his disci- ples in so far as those opinions might be found to differ from the Holy Tradition; but although these disciples, Abu Yusuf and Muhammad, the former being Chief Justice at Baghdad, did, it was said, help to bring their master's doctrines into great renown, yet nevertheless they entirely diﬁered with him regarding the punishment of homicide, laying down the more rational doctrine that if the intention of murder be proved, no distinction should be drawn with regard to the method employed'. Abu Yusuf's opinion, however, never came to supersede that of Abu Hanifa, and the important point we have to notice is that 1, Aspinall, Cornwallis in Bengal, (1931), pages 53-56.

2. Bengal Rev. Cons., 28 Nov. 1788; 30-12-1789.

3. Bengal Rev. C0ns.', 28 Nov. I788; 30-12-1789.

4. Bengal Rev. Cons., 21 Julg, 1790.

5. Bengal Rev. Cons., I9 Aug. 1789; 15 July 1791. This information was given to Jonathan Duncan, the Company's Resident at Benares -,by the Muhammadan Judges of the Benares Courts.

217

the latter's view Was generally accepted and acted upon in Bengal at this time'.

In several other cases the Muhammadan Law which was administered in Bengal did not permit murderers to be executed. Provided they were Muslims, neither fathers nor mothers suifered death for the murder of their children, but were ﬁned; they were liable to be hanged only for murdering other people's children. Grandfathers and grandmothers enjoyed a similar immunity with respect to their grandchildren; so did a Master for the murder of his slave, or a man for the murder of his son-in--1aw, provided that his daughter was actually living with her husband at the time. Patricide or matricide, however, might be punished with death'.

Homicide was justifiable in the following cases: A woman might kill a man who persisted in carrying on an indecent conversation "with violence and il1--will"; a man using a dangerous weapon in the streets of a town during the night, or outside the town during the day, might legal- ly be killed". Under certain circumstances a man might kill his wife if he caught her in the act of adultery, and also her paramour; and he might slay a man who attempted to rape his wife or his slave girl. The authorities who were followed in the Courts of Justice in Bengal differed some- what on this matter. One law Book laid down that a man might kill another who attempted to rape his wife or slave- girl. Another authority maintained that an adulterer might be slain provided that, if he "made a noise" to give the offender a chance to desist; second, the adulterer neither ﬂed nor desisted on hearing the noise; third, the offender was a Mussulman; and fourth, the offender was seen in the very act. A third authority stated: "A man finding another with his wife, it is lawful for him to kill him: should he know that the fornicator will cease his attempt at his crying out, or frightening 'him with weapon not mortal, he is not to slay him. Should he know that his death only wil restrain him, itis permitted to slay him". A fourth authority emphasises the necessity of producing witnesses to prove the act of fornication. "If a murderer shall state that he has slain anyone on account of fornica- tion, and the heirs of the slain shall deny his allegation, the murderer having no witnesses, his assertion being i. Bengal Rev. COD.» 28 Nov. I788; 30 Dec. 1789. In a written com- munication the Ghazipur Judge refers to the "Hanifan legal writings, which are most prevalent, or in use, for the guidance of the rulers of the country of Hindostan."

2. Bengal Rev. Cons., 30 Dec. 1789; 29 June 1792 218 without testimony, shall be deemed inadmissible". A man might slay a person caught in the act of robbing his house'-'.

But by far the most important reason why murderers frequently escaped the death penalty was that provision of the Muhammadan Law which gave to the sons or next of kin the privilege of pardoning the murderer of their parents or kinsmen. This misplaced power of life and death made the fate of a murdered largely depend on the caprice, venality, or indifference of the deceased man's relatives.

Detailed Analysis A.--Homicide The Muslim law of homicide (as administered at the advent of the British rule) seems to have been elaborate. Centain types of homicide were regarded as lawful and justiﬁed. Further, "retaliation" for the murder was allow- ed in certain cases. Homicide in self-defence or in the prevention of adultery, rape or other serious offences or at the express desire of the person killed was excusable, and so was homicide committed under threat of death". Apart from these, and apart from speciﬁed cases, homicide was an offence and "wilful homicide"--Qatl-i-Amd4--was punishable with death or retaliation where permissible. The other types of illegal homicide were punishable with "ﬁne of blood" (Diyut), and, in certain cases, by expiation and exclusion from the inheritance'! This brings us to the question of what was "wilful homicide", and what were the other types of "illegal homi-

cide".

1. Bengal Rev. Cons., 18 Feb. 1789; 30 Dec. 1789. A Tradition from Muammad says: Someone asked him, 'Oh, Prophet of God! Should I ﬁnd anyone with my wife, shall I leave him till I can get four witnes ses, The Prophet answered, 'Let them alone till you can get the four witnesses'.

2. Bengal Rev. Cons., 30 Dec. 1789.

3. Hamilton: Translation of the Hedaya, (London) (1791) Vol. 4, pages 2.90 to 293 and 316, may be seen.

4. Harigton's Analysis of Bengal, Regulations, (1821), Vol.1, page

351. .5 Harrington's Analysis of Bengal Regulations, (1821), Vol. 1, pages 25: to 256.

219

B~Types of illegal homicide under Muslim Law For the purpose of punishment, Muslim Law classiﬁed illegal 'iomicide into 5 types, which were as follows:----

I. Wilfzil honz2'cide---It implied in-

Type of homicide Punishment

(a) Death sentence;

tention to kill followed by a (b) Retaliation by the family of the voluatary act.' It was defined as victims was permissible also*, "homicide committed by a res- subiect to certain restrictions**; ponsi' ile person (z'.e. a sane and (c) Exclusion from inheritance adult person) wilfully striking an- property of person slain. other person, with a mortal wea-

pon, or something that serves as such, like a sharp piece of wood, a sharp stone or ﬁre.'~"' Proof of intention was material, but once it was proved, there was no distinction between sud-

den and provoked homicide and cold-blooded murder."-4 Mention of the instrument actually used was regarded as singniﬁcant in ﬁnding out the intention. Use of some blood-drawing instrument and the consequential death of the victim was regarded as wil-

ful hornicidef' There was much difference of opinion regarding the izistruments considered as mortal." But, generally speak-

ing, killing by biting, drowning, successive blows with a whip or a stich. exposure to cold or to the sun, throwing from the roof or top of a hill or into a well or strangling or poisoning was not considered wilful homicide.

And conﬁrrng the victim till the victim died from hunger, was to 1-2. Harrington's U)

4. Analysis of Bengal Laws and Regulations, (1821), Vol. 1, page 251.

* Harrington, page 257.

** For details of "retaliation", see Harrington, Analysis, (1821), Printed Reports of the Sadr Ni- pages 263-266. zamat Adalat Trials, No. 65 of 1805 and I of 1806.

Harrinanton's Analysis of Bengal Laws ofRegulations, (1821), Vol. I, pagg 251, f.n. 3.

Bengal Revenue Consultations da- ted December 30, 1789, cited in Bnnerjee, Background to Indian Criminal Law, (1963), page 39: mp; Harrington, Vol. 1, page 252, Lu. 1, and 253.

. Banerjee, Background to Indian Criminal Law, (1963), page 39, top, citing Bengal Revenue Con- sultatinns dated November, 28 1788 and December, 30, 1789;

Harrington, Vol. 1, page 253.

Qatl-i-'Am J.

Shabah-An ld. 2- Qatl-i-Khalil. 3- Qatl-i-Qai m.

Maqam-al-el Khata.

Qatl-ba-

Sahub.

. Involuntary . Accidental homz'cz'de--Example gi-

. Harrington, pages 251, 255, 256.

Type of homicide Punishment not wilful homicide. Nor was putting the Victim alive into a grave or killing with a beast, etc.' Quaxz'-deliberate homz'cz'de--Here the Punishable by blood money (Diyut) act was voluntary, but the in- and also by expiation and exclusion strument was not considered as from inheritance*.

one endangering life, so that the intentzbn to kill could not be presumed. Intention to kill is the factor which distinguished wilful homicide from Quasi-de-

liberate homicide."

Erroneous homicide i.e. where there Punishable with Diyut (blood money) was an error in the act or in the and also by expiation or exclusion intention. Illustration of the for- from inheritance.* mer error is an arrow shot at a mark, but actually hitting a man.

Illustration of the latter is an arrow shot at an object mis-

taken to be an animal, and actu-

ally a human being."

lzomz'cz'de----Example Punishable with blood money (Diyut), and also by expiation or given is a gleeping person's fall- exclusion from inheritance.

ing on another and killing him thereby, or death occasioned by the accidental fall of a brick or a piece of wood from the hand of a person.4 Punishable with blood money onb2.** (Expiation is not incumbent, and exclusion is not incurred. Fine is, however, payable in View of illegality of the act).

ven is a person digging a well or setting up a stone, in ground not belonging to him, where another is killed by falling into the well or over the stone.5--'

1. Harrington, Analysis, etc. (1821), Vol. 1, pages 253-256.

*Harrington, page 258.

Harrington, Analysis, etc., (1821), Vol. 1, page 252 and Hamilton, Hidaya, Vol. 4, pages 307-309.

. Hamilton's Hidaya, Vol. 4, page **Harrington, Vol. I, page 259.

277, (London) (1791), and Har- rington's Analysis, etc. (1821), Vol. I, page 252.

5. Harrington, page 253.

Reference to the Fatawai-i--Alam giri, IV, 503 to 553 are cited in Sangar, "Murder and its punishment during the reigns of Shahiehan and Aurangzeb", (I945) 8 Indian History Cong- ress Proceedings 289.

221

C.----Other Capital Offences under Muslim Law Other offences punishable with death under Muslim Law at the advent of the British rule were as follows:--

Type of homicide

1. Zina (Unlawful conjunction of the sexes)?

2. Repeated conrnission of the oﬁence of larceny (Sariqa) if the value is not less than IO dirhms (2 to 3 rupees)?

3. Highway robbery (Sariqa-i-

Kubra) ----Where murder had been committed (without rob- bery), or both robbery and mur- der had been committed."

I. Harrington, Vol. 1, page 266.

2. I-Iamilton's Hidaya, (1790, Vol. 1, pages 82-84.

3. See Ha.m.ilton's Hidaya, (1791), Vol. 2, pages 124 to r30, and Harrington, Analysis, (1821), Vol. 2, pages 281, 283, discussing the four descriptions of robbery.

Punishment Death pemzlty~Lapidation or stoning to death (Stoning to be com-

menced by \vitnesscs)*----if the offence is committed by a man of sound understanding and mature age and married, with a woman of the same description. (In the case of non-Muslims or unmarried persons, punishment was 100 stripes and in the case of a slave, so stripes).* There were detailed provisions to ensure avoidance of any cruelty or breach of decency in carrying out the punishment.* But death sentence was imposed only when four honourable wit- nesses saw the guilty persons actually in the act.* In fact, even whipping was often remitted during British times.** As an exemplary punishment, death could be inﬂictcd.+ Death Sentence was perniissiblej,' *Harrington, Vol.

268. pages 267, **See Aspinall, Cornwallis in Bengal, (1931), page 62', foot-note 2.

T Harrington, Vol. 1, page 275. In the foot-note, the Fatwa Alam- giri is quoted as directing "The man may put the thief to death for the purpose of seeasut or exem- plary punishment as he is a practised disturber of the peace."

;tHarrignton, Vol. 1, page 282, dis- cussing the third and fourth types of robbery.

III----Capital Punishment under the British rule but before the enact-

ment of the Indian Penal Code.

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APPENDIX XXV III. CAPITAL PUNISHMENT UNDER THE BRITISH RULE BUT BEFORE THE ENACTMENT or THE INDIAN PENAL CODE CAPITAL PUNISHMENT UNDER THE BRITISH RULE, BUT BEFORE THE ENACTMENT or THE INDIAN PENAL CODE.

We may now consider the statutory modiﬁcations made in the Muslim Criminal law during British times, in the period before the commencement of Indian Penal Code. The policy of the British being to interfere as little as possible with the Muslim Penal law, only such modiﬁca- tions were made as were required to remove its glaring defects.

In 1772, for suppressing robbery, a provision was made that dacoits were to be executed in their villages, the vil- lagers were to be ﬁned and the families of the dacoits were to become the slaves of the State,'-2. The provision pena- lising the villagers and the family, however, very shortly ceased to be enforced?

The letter of Warren Hastings, President of the Council dated 10th July, 1773 recorded on the proceedings of Coun- cil dated 3rd August, 1773'', discussed in detail the principles of Muslim Criminal Law as expounded in theory and as applied in practice, and made several suggestions as to severe punishment and for dacoits, irrelevance of instru- ment used for committing homicide, the requirement of two witnesses in the case of positive capital offence, etc. It also throws considerable light as to the origin of sentence of transportation of life in respect of "every convicted felon and murder" not condemned to death by the sentence of the Adawlat'.

The Regulation dated 3rd December, 17905 made several changes.

I. Article 35 of the plan for the administratfon ofjustice in Bengal framed by the Committee of Circuit presided over by Hastings; proceedings of the meeting held on 15 August, 1772 and adopted on 2r August I772 (Judicial Regulations); see Harrington, Vol. 1, page 299.

2. Aspinall, Cornwallis in Bengal, (1931), page 65 f.n. 4, citing Bengal letter to Court dated Nov. 3, 1772.

3. Bengal Revenue Consultations, December 29, 1785.

4. See Colebrooke, Digest, Supplement, Calcutta, (1807), pages H4 et seq.

5. Colebrooke, Digest, Supplement, Calcutta, (I807), page 115.

6. Colebrooke, Digest, Supplement, Calcutta, (1807), pages 141, I43 155, I56. (Regulation for the Administration of Justice in the Criminal »-Courts in Bengal, etc.).

223

Regarding homicide, by a Bengal Regulation of 1793 (sections 50, 52, 55, 76, Bengal Regulations 9, 1793 substi-

tutcd by Regulation 4, 1797)-

(a) nature of the instrument as signiﬁying the intention was made immaterial in homicide; the inten- tion was to be gathered from the general circumstanc- es and the evidence; and

(b) the discretion left to the next of kin of the murdered person to remit the penalty of death was taken away'-2.

Thus, the motive, not the method, should determine the sentence". In 1791. the punishment of mutilation was abolished. All criminals adjudged in accordance with the Fativa of law oﬂicers to lose two limbs were to suffer, instead of it, imprisonment with hard labour for 7 years"--5.

Cornwallis, introduced a number of changes in criminal law by the "Cornwallis Code".

(The Cornwallis Code, 1793 really comprised 48 regula- ticns dealing with various aspects of revenue, civil and judicial administration, including jurisdiction and proce-

-dute of Civil and Criminal Codes).

Cornwallis also deprived the relatives of a murdered men of their power to pardon the criminal, and the law was to take its Course".

A Bengal Regulation of 1797 provided that in cases of wilful murder, judgment was to be given on the assump- tion that "retaliation" had been claimed. The sentence could extend to death if that was the prescribed sentence under Mahommedan Law. As regards "ﬁne of blood", the Judges were directed to commute the punishment to impri- sonment---which could extend to life imprisonment7---5.

1. Bengal Regulation 9 of 1793. A Regulation for re-enacting with alterations and modifications, the regulations passed by the Governoer General- in-Council on the 3rd December, 1790, etc. This very comprehensive Regu- latio . contains the fundamental rules for administration of criminal law.

2. Harrington, Vol. 1, pages 312,313.

3. Aspinall, Cornwallis in Bengal, (1931), page 69.

4. Resolution of the Governor-General in Councl of 15 April, 1791, cited in Aspinall, Cornwallis in Bengal, (r93r\, page 74, and foot-note 3 on that page. This was replaced by sect"on 51, Regulation 9 of 1793; Harrington pages 310, 322.

5. See also C0lebro0k's Digest, (Calcutta 1807), Supplement, page 159.

6. Aspinall, Cornwallis in Bengal, (Manchester University Press), (1931), page 69, citing Bengal Revenue Consultations dated 3-12-1790.

7. Bengal Regulation 4 of 1797 (13th March, 1797), section 3.

8. Barrington, Vol. 1, page 313.

Dacoity.

224

By the same Regulation of 1797, offenders guilty of put- ting to death "any person on the ground of his or her being versedin and practising sorcery or any other ground such person or persons" were declared to be guilty of murder on being convicted of the crime, and punishable according-

lyl.

By sections 1 to 5, Bengal Regulation 4 of 1799, elaborate provisions were made for the trial of persons charged with Treason and other crimes against the State?

Certain homicides which were regarded as justiﬁable hcmicides under the Muslim Law, were considered as opposed to public justice, and by Bengal Regulation 8 of 1799, such cases were declared liable to capital punishment. These included such cases as the prisoners being one of ancestors of the slain, or being the master of the deceased, or the consent of the cleceased3-4. Death sentence could be passed provided if the court saw no circumstance which may render the prisoner a proper object of mercy.

By the same Regulation (section 5), it was made clear, that wilful homicide by poisoning or by drowning when the 'intention of drowning, etc., was evident was included in the rule" that it is the intention which is material and not ':.'.e manner and instrument of perpetration.

It would appear, that the crime of dacoity was ram- pant in the beginning of the 19th century°--Sir Henry Strachey (while he was Judge of Circuit in the district of Calcutta, in his report in the year 1802) said7, "The crime of dacoity, has, I believe, increased greatly since the British administration of justice. The number of convicts con- ﬁned at the six stations of this division . . . . . . . . . . ..is about 4,000. Of them probably nine-tenths are dacoits."

Mr. Doweleswelll (Secretary to Government) in a re- port on the general state of police in Bengal, said. "Rob- bery. rape and even murder itself are not the worst ﬁgures in this horrid and disgusting picture. An expedient of common occurrence with the dacoits merely to induce confession of property, supposed to be conceal- ed, is to burn the proprietor with straw or troches, until he discloses the property; or perishes in the ﬂames . . . . . . .. if the information obtained is not extremely erroneous, the I. Bengal Regulation 4 of 1797, section 6.

2. Bengal Regulation 4 of 1799, sections 1 to 5.

3. Bengal Regulation 8 of 1799, Sections 2 and 3.

4. Harrirgtor'-, page 314, and foot-rote 1.

5. This rule had also been enacted by Bergal Regvlation 9 of 1793, sec- tion 75.

6. Sir Henry Strachey's Report of 1802, Quoted in B. S. Sinha, The Legal History of Inoia, (1953), page 71.

7. Mr. Dowe1eswell's Report of 1809, quoted in B. S. Sinha, The Legal History of India, (1953), pages 171-172.

225

offender, hereafter noticed, himself committed ﬁfteen murders in nineteen days . . . . . . . . ..and volumes might be ﬁlled with the atrocities of the dacoits every line of which would make the blood run cold with terror."

Death sentence was prescribed by Bengal Regulation VIII of 1801 for accidental homicide (as known to Muslim law) occurring in the prosecution of unlawful murderous intention, e.g., shooting at A with intention to kill A and by accident killing B'.

Certain other changes were made, not relevant to capi- tal punishment.

By Regulation XXI of 1795 (as extended in its territorial application, by Bengal Regulation III of 1804) infanticide among "Rajkumars" was declared to be murder2--3.

By Bengal Regulation VI of 1802, the whole practice of infanticicle by drowning was declared to be wilful murder punishable with death''. It was stated that the practice of killing female children had been Widely prevalent in India, and the object was to stop that practice'. The Regulation, however, punished the throwing into sea, river, etc. of "any infant or person not arrived at the age of maturity".

Regarding robbery, by Bengal Regulation 53 of 1803, death sentence was provided for all cases of murder com- mitted in the prosecution of robbery, or aiding, or abetting the same, etc. The Nizamat Adalat was empowered to inflict the capital sentence on habitual and notorious robbers".

Regarding escape by convicts, by Bengal Regulation 53 of 1803. convicts escaping from their places of transporta- tion. if apprehended, were directed to be tried, and on con- viction, were to be sentenced to death7, "if no circumstan- ces appear to the Court to render such convict an object of I. Harrington, pages 317-318; sections I to 6, Bengal Regulation 8 of 1801, may be seen. These sections modify the Muslim law. They require, however, that there must be an intention to murder one person and in pro- secution of such intent-'on an actual homicide of another by accident.

2. Cambridge History of India, (1958), Vol. VI, page 129, bottom.

3. See Bengal Regulation 21 of 1795, section 13 (as extended by Bengal Regulation 3 of 1804, section II).

4. Bengal Regulation 6 of 1802 (zoth August, 1802), Section 2. The Regulation states that the criminal and inhuman practice of sacriﬁcing child- ren by exposing them to be drowned or devoured by sharks was reported to be prevalent at Saugor and other places. It asserts that this is an oifence.

5. Cambridge History of India, (1958), Vol. VI, page 129.

6. Bengal Regulation 53 of 1803, section 3, clause Second.

7. Bengal Regulation 53 of 1803, section 9, clause Second. 16--122 Law 226 Regarding hostility to Government open hostility to the British Government, or actual commission of any overt act of rebellion against the authority of the same, or the act of openly aiding and abetting the enemies of the British Government were, in 1804, declared to be liable to the immediate punishment of death and to the forfeiture of the property, etc, of the convict'. The regulation provided for trial by courts martial and was applicable during times of war or open rebellion, but did not preclude2 the Govern- ment irom causing the persons to be charged under Regu- lations 4 of 1799 and 20 of 1803.

Regarding robbery, Bengal Regulation 3 of 1805 made special provisions". It had been brought to light that many village watchmen and some police otﬁcers were concerned in the preparation of robbery, or Connived at the commis- sion of robbery. Hence the Regulation laid down that any police officer convicted of robbery by open violence or of murder, wounding, maiming or any other aggravating act. in the prosecution of robbery or an attempt to rob was to be sentenced to death. Any direct or indirect connivance at any of these crimes on the part of any police officer was to be considered as its actual commission and punishable accordingly".

By Bengal Regulation XVIII of 1817, persons convicted of murder in prosecution of robbery, burglary or theft were made liable to the sentence of death". By section 15 of the same Regulation, exemption of Brahmins of Benaras from capital punishment was abolished7.

Regarding insane persons, Act 4 of 1849 provided as follows:--

"1. No person, who does an act Which, if done by a person of sound mind is an offence, shall be acquitted of such offence for unsoundness of mind, unless the court or jury, as the case may be, in which according to the Constitution of the Court the power of convic- tion or acquittal is vested shall ﬁnd, that by reason of unsoundness of mind not wilfully caused by himself, he was unconscious and capable of knowing, at the time of doing the said act, that he was doing an act forbidden by the law of the land." (But even in such MI. See BengalRegulation 10 of 1804, sect-'on 3 read with section 2.

2. Bengal Regulation 10 of 1804, section 2.

3. Bengal Regulation 3 of 1805, sections 2 to 6.

4. Bengal Regulation 3 of 1805, sections 2 to 6; Harrington,pz-gas 326 to 329.

5. Harrington, page 328.

6. In 1812, Regulation 15. (Section 2) made ccrta'n special prov:'s'or5. for punishntent of burglary particularly bctvveer. s1'n--sct and sun-rise; H2rr.?rg- ton, pages 329-330.

'7. Field, Regulations of the Bengal Code (1875), page 175, foot-rote 2. Bengal Regulation 17 of 1817, section 15.

227

acquittals, the court was to order him to be kept in safe custody until the orders of the Government were received)'.

Regarding waging war, in the year of the Indian Mutiny, waging war and other offences against the State or instiga- tion of the same was made punishable with death or trans- portation for life or rigorous imprisonment up to 14 years in addition to forefeiture of property. etc'.

Mutiny. an earlier Act' had provided that every person who "maliciously and advisedly" endeavour- ed to seduce any person or persons, in the military or naval . . . . . . .. .Forces of the East India Company from allegiance to Her Majesty or duty to the said Company, or endeavoured to stir up any person or persons to commit mutiny, etc., was on conviction to be transported for life or imprisoned up to 7 years.

Regarding In 18574, the offence of intentionally seducing or endea- vouring: to seduce any officer or soldier from his allegiance to British Government or duty to East India Company, excitine or causing others to excite mutiny or sedition in the army was made liable to the punishment of death or transportation for life or imprisonment with hard labour up to 14 years, besides forefeiture, etc. Later, the 1858 an Act5 was passed to deal with persons who had escaped from jails during the mutiny. Punishment was transportation for life--secti0ns 1 and 2.

The offence of waging war was dealt with by Act 11 of 1857, preamble and section 1 of which may be quoted:'' "WHgRr.As it is necessary to make due provision tor the prevention, trial, and punishment of offences against the State; it is enacted as follows:----

1. All persons owing allegiance to the British Government who,' after the passing of this Act, shall rebel, or wage war against the Queen or the Govern- ment of the East India Company, or shall attempt to wage such war, or shall instigate or abet any such rebellion or the waging of such war, or shall conspire I. An Act for the safe custody of cr;'m'nal lunatics. Act 4 of 1849, sections I and 3.

2. Act II of 1857.---.An Act for the prevention, trial and punishment of offences, against the State. (30 May, 1857).

3. Act I4 of 1849. An Act to punish tamperirg with the Army or Navy (25th August 1849', Section 1.

4. Act 14 of 1857, Section I (Duration was for one year, see sccton 7.1).

5. Act _<, of 1858--An Act for the punishment of certain offenders who have escaped from jail and of persons v.'hO Shall knowingly harbour such otfendcrs.

5- AC1 11 0f 1957. PM Act for the prcvcnti m, trial axd punishm/'rt of offences against the f:tat: (3ot'z May, 1857).

Preamble.

Punishment for rebellion or waging war against the Govern-

ment.

Proviso.

Punishment for any heinous offence in Districts or place sub-

iect to Martial law or to which this Act is ex-

tended.

Interpreta-

tion of the words " heinous offence ".

228

so to rebel or wage war, shall be liable, upon convic- tion, to the punishment of death, or to the punishment of transportation for life, or of imprisonment with hard labour for any term not exceeding fourteen years; and shall also forfeit all their property and effects of every description.

Provided that nothing contained in this section shall extend to any place subject to Regulation 14 of 1827 of the Bombay Code".

Regarding the offence of preparing to wage war, we may refer to Act 26 of 1858 (corresponding to section 122 of the Indian Penal Code), under which the collection of man, arms, ammunition or otherwise preparing to levy war against the Queen or the East India Company or instigating any other person to commit such oifence, was punishable with death or transportation for life or imprisonment for life or imprisonment with hard labour up to 14 years, and also forfeiture of all property and effects of every descrip- tion'.

An Act2 of 1857 should also be referred to, which made provisions for trial of heinous offences" in certain districts in which martial law had been established".

Sections 1 and 2 of Act 16 of 1857 may be quoted:----

"I. Whoever shall commit or attempt to commit any heinous offence in any District or place in which Martial Law hath been or shall be established, or in any District orplace towhich this Act shall be extend- ed by order of the Governor General of India in Council. shall be liable, on conviction to the punishment of death, or to the punishment of transportation for life, or imprisonment With hard labour for any term not exceeding fourteen years; and shall forfeit all his pro- perty and effects of every description.

Ill. The words "heinous oﬁence" shall be deemed to include an attempt to murder, rape, maiming, dacoity robbery, burglary, knowingly receiving property obtained by dacoity, robbery or burglary, breaking and entering a dwelling house and stealing therein, intentionally setting ﬁre to a village, house, or any public building, stealing or destroying any property provided for the conveyance or subsistance of Troops, and all crimes against person or property attended with I. Act 26 of 1858, (section 1) (Temporary).

2. Act 16 of I857. An Act to make temporary provision for tre trial and punishment of heinous oﬂerices in certain districts (13 June 1857).

3. The expression, "heinous oﬁences" was deﬁned by an inclusive deﬁ- nition---section 2, Act 16 of 1857.

4. Court-Martial could be established under Act 14 of 1857.

229

great personal violence, and all crimes committed with the intention of assisting those who are waging war against the State or forwarding their designs."

The broad features of the Muslim Criminal law, as alter- ed by Regulations on the subject, before the Indian Penal Code was enacted, may be indicated.

Regarding sentences. it was felt.'-2 that the discretion which the Muslim criminal law left for henious crimes was rather unlimited, and its administration became arbitrary and uncertain. In the adjudiciation of punishment under the discretion thus allowed, the position regarding sent- ence (it was stated) was often governed by a consideration of the degree of proof rather than the degree of guilt and criminality of the act established against the accused. It was considered necessary to amend the law on these points, and that was done by a Bengal Regulationi'.

Before this, the position was that the sentences of the court were to be regulated by Muslim law except in cases in which a deviation from it was expressly directed by any Regulation".

The operation of the law may be illustrated with refer- ence to an actual case. Four persons were charged with murder. The principal was sentenced to death, one con- victed of being an accessory before the fact and of bring- ing a false accusation of murder against an innocent person was sentenced to imprisonment for life; the remaining two convicted of privity of crime after the fact and concealing their knowledge thereof, were sentenced to imprisonment for three years"'.

The rule of the Muslim law, that if any one of the gang of robbers commits murder, the prescribed punishment is inflicted on the whole, was maintained?

In cases of murder, wounding or other personal injury, a description of the weapon or other instrument said to have been used in the perpetration of the act Was to be recorded in the papers including such particulars as are available to ﬁx the intent of the prisoner, the length of the instrument, its general form. if not one in common use, etc?

I. Beaufort. Digest of Criminal Law, (1846), page 16, paragraph 45.

2. Section I, Bengal Regulation 53 of 1803.

ff 3. Bengal Rcgulaticn 53 of 1803, section 2, paragraphs ﬁrst to ith.

4. Beaufort. Digest of Criminal Law, (1846) page 19, paragraph 59, Bengal gulntion 9 of 1793, scctions 54 and 74,

5. Beaufort. Digest of Criminal Law, C1846; page 3;, paragraph, 135 referring to Nazamut Adawlut Report, Vol. 4, page 235.

6. Beaufort, Digest of Crim'nal Law (1846). page 37, paragrapig I39.

7. Beaufort, Digest of Crimiral I aw (1846), page 143, paragraph 769 Citing C.O. No. 54 of Vol. 2, page 4.

British subjects.

230

It was recognised that there was a great difference between an offence entered upon with deliberation and a Criminal intent and one committed with premediation and unprovoked by previous enmity and malice. Intoxication was considered as a ground of mitigation for punishment in certain cases, unless wilful'.

In all cases where the Sessions Court condemns a pri- soner to suffer death penalty or imprisonment for life, it was to transmit a copy of the sentence to the Nizamut Adawlut, and not to execute the sentence till the ﬁnal sentence of that court2--" (the Nizamut Adawlut).

There seems to have been some controversy as to whether a person who is compelled by another by a menace of death to murder a third person, could be excused for the murder. One View was, that in such cases the person compelled, as the "instrument" rather than the author of the homicide, and therefore, subject to discretionary punishment only if the circumstances of the case so re- quired. Another View was, that both the parties were liable to murder."

Special mention must be made of the law applicable to "British" subjects (*L.e., those who were not "natives"). From the Report No. 31 of the Indian Law Commissioners to the Governor General, dated 4th November, 18435, it would appear, that they were regarded as governed by the English law. Act 31 of 1838 embodying the provisions of criminal law passed in the ﬁrst year of Queen Victoria amended the law on the subject. Its principal object was to take away capital punishment in certain cases, and to mitigate the rigour of the law in other respects.

Brieﬂy speaking, the following offences were removed from the category of capital offences; (in respect of "British" subjects):--

(1) Malicious injuries;

(2) Burglary;

(3) Robbery;

(4) Burning and destroying ships.

1. Beaufort, Digest of Criminal Law, (1846), page 33, paragraph I17.

2. Bengal Regulation 9 of 1793, section 47.

3. Beaufort, Digest of Criminal law, (1846), page I47, paragraph 199, and page 157, paragraph 850.

4. See Beaufort, Digest of Criminal Law, (1846), page 29, paragraph 93, and page 33, paragraph 118.

5. Report No. 31, of the Indian Law Commissioners to the Governor General, dated 4-II-I843, printed in copies of the Special Reports of the Indian Law Commissioners, (1844), page 335, at pages 338 and 339, see paragraphs 2o-22.

2.31 As enun1eI'.s?;e,: In that rep~;2rt of 1843', ilences (in respect of British subjects) which remained capitalfxfter Act 31 of 1838*' (an Act of the Government of India) and the Statute Geo. 4}. c. 74" (passed earlier to remove cer- 'tain offences from the category of capital offences) were i,'.\'Cl'.'e_, namely: --

(I) Return from transportation; (2) Murder;

(3) Attempt to murder, when injury inflicted; (4) Sodomy;

<5) Rape;

(6) Abuse of female children under eight years of age;

(7) Robbery with wounding;

(8) Burglary with assault (with intent to murder) ;

(9) Arson, where person within house, and life endangered;

(10) Riotously destroying buildings; (11) Destroying ships, and life endangered; (12) Exhibiting false lights.

The Report recommended that it was not expedient to give the "provincial tribunals" jurisdiction over British-born subject in capital cases.

APPENDIX XXVI I.IsT or CAPITAL OFFENCES UNDER BOMBAY REGULATION X11.' or 1827, AND PROVISIONS THEREIN REGARDING OFFENCES WHICH ARE NOVV CAPITAL.

1IIA--LIsT or CAPITAL OFFENCES UNDER BOMBAY REGULATION XIV or 1827 AND PROVISIONS THEREIN REGARDING OFFENCES WHICH ARE Now CAPITAL.

The Bombay Regulation of 1827 (XIV of IS 7), "a Regulation for deﬁning crimes and of'ences and specifying the punishments to be inflicted for the same" was passed by the Governor-in-Council on 1st January, 1827. Its Important provisions of Interest in connection with capital punishment are noted below:--

Section 1--clause 2d.--Attempts----"An attempt to com- nii.' any oi' the acts: shall be punished according: to tne Court's judgment iottndcct on a combined consir}.erAtion . Report No. 31 of the Indian Law Co ';11T'.lSSl0I'.C!'S, etc. . Act 31 of I838.

. SLLLUILC 9 Geo. 4, c. 74.

. Section I, clause Ist covered all sections punishable under the Code.

H .;..m N 232 of the measure of guilt attempted and committed, but the punishment for such attempt shall in no case exceed that prescribed for the actual commission of the oﬁ'ence attempted."

Section 1--clause 3d.--Negligence--"The unintentional commission of any of the above acts shall be punished ac- cording to the Court's judgment of the culpable disregard of injury to others evinced by the person committing the said act, but the punishment for such unintentional com- mission shall not exceed that prescribed for the offence committed."

Section 1--clause 5th--Instigation and -abetment--"Insti- gating or aiding in any of the above offences committed or attempted, shall be punishable as the respective offences; and in treason, rebellion, murder, or gang robbery, con- cealment whether before or after the fact, shall be punish- able equally with instigation or aid."

Section IlI----clause 1st--(Table item First) authorised the punishment of death in accordance with the rules pres- cribed in the succeeding section.

Section IV dealt with the mode of inflicting punishment of death. Under clause lst, hanging the criminal by the neck was the mode of carrying out the sentence, and it was also stressed that the time should be between sunrise and sunset, and the spot should be selected in such a way a.s may afford the greatest possible publicity to the execu- tion. Under clause 2d., it directed that the executions should be conducted in a manner calculated to impress the spectators with awe and to increase the impression on the spectators. Under clause 5th, death was not to be inflicted on Brahmins or on females in districts, Where the religious feelings of the native community would be shocked there- by, unless in cases of such deep atrocity as may be ex- pected to counteract the effect of those feelings.

Section XlI--clause 1st--deﬁnes "treason" and under clause 2d. the punishment of treason shall be death and conﬁscation of property.

[Note:--Under Regulation I of 1827, sections VIII and IX, in case of war or rebellion, the Governor-in-Council by proclamation could suspend the civil and criminal law for public safety and during such suspension the GoVernor-in- Council could order acts of treason, or rebellion a.gainst the British Government committed by persons owing by birth or residence allegiance to the said Government to be tried by court martial and the immediate punishment of death '».'~ as authorised] Under section XVI. clause 2d. the offence of pmrjttry was fined with imprisonment, ﬂogging or public disgrace, etc. 233 Section XXVI, clauses 1st, 2nd, 3rd and 4th dealt with murder, as follows:--

Clause lst~--"Any person who shall purposely, and without justiﬁable or extenuating cause deprive a human being of life, or who shall commit or assist in any un- lawful act, the perpetration of which is accompanied with the death of human being, shall be liable to the punish- ment of murder, provided always that death take place Within six months after the act was committed."

Clause 2d.----"The belief that sorcery was practised by the deceased shall not be admitted as a justiﬁable cause for putting him or her to death, nor shall the deceased's own request be so admitted; by assisting at any rites of self- tmmolation, as directed by the religious law of the person performing such immolation, shall not subject any one to the penalty of murder."

Clause 3d.-----"Deprivation of life may be considered justiﬁable as a means of resistance (provided it be the only evident and efﬁcient one) to violence offered to the person or property of any one. or as the only evident and efficient means of securing a person who has committed robbery or murder, or any other atrocious offence."

Clause -ith--"The punishment of murder shall be death, transportation, imprisonment for life, or solitary imprison- ment with flogging."

Under Section XXVII, culpable homicide was deﬁned as folloWs:----

"Any person who shall, by committing or assisting in any unlawful act, occasion the death of a human being, provided, as before, that death ensue within six months after the act was committed, under cir- cumstances which the Court. in judging of the act, intention and cause. considers though not justiﬁable under the preceding section, yet sufficiently extenuat- ing to divest the act of so much criminality as would constitute murder, shall be deemed guilty of culpable homicide. and shall be punishable with fine, or im- Drisonment not exceeding ten years, or both com- bined."

Undes' section XXXVH, clause lst, gang robbery com- mitted by day or night, when accompanied with force, was punishable in any of the modes speciﬁed in section III, Except conﬁscation. This included the punishment of eat .

Murder deﬁned.

The belief that the deceased was sorcerer not admitted without justification, provision regarding self-immo1a-

tion pres-

cribed by the sufferer.

Certain causes may justify the taking away of life.

Punishment of murder.

234

APPENDIX XXVI1 l"tliCO.Vll\/Il:)l\'DA'l'IO;\KS or THE INDIAN LAW COIx/llVIlSSIONl7.'RS Drajt Penal Code, 1837 The l)rai't Penal Code (First Report) was prepared by the lndian Law Commissioners and submitted in 1837. After stating the reasons for proposing. the enactment of a uniform Penal Code to take the place of the rules of Muslim laws and the various Regulations modifying it or in Bombay codifying the Penal Law' and explaining the scheme of the proposed Code", they proceded to set out the recommendations in the form of a Bill. Under clause 40, one of the punishments to which offenders were liable was death. The next was transportation". Clause 41 gave power to commute the sentence of death to the Govern- ment of the Presidency without the offender's consent. The offences which were made capital seem to be the following:----

Clause 109--waging war etc.-- (death or transportation for life or imprisonment of either description for life and also forfeiture of all property).

(Clauses 116 and 1l7--abetting mutiny etc.----only transportation for life etc.) (Clause 19l--Giving, etc., false evidence with the in- tention, etc., that any person may be convicted of capital oifence--transportation for life or rigorous imprisonment not less than 7 years, etc. But where innocent person was executed, it was regarded as culpable homicide.--see clause 294, illustration (d).

Clauses 294, 295 and 300--~murder------death or transpor- tation for life or rigorous imprisonment for life and also ﬁne.

(There were lesser punishments for manslaughter, voluntary culpable homicide with consent or in defence and for causing death by rash or negligent act.) Perjury--illustration (d) to clause 294 ran as fol1ows:----

"(d) A with the intention or knowledge aforesaid falsely deposes before a Court of Justice that he saw Z commits a capital crime. Z is convicted and execut-

ed in consequence. A has committed the offence of voluntary culpable homicide".

Clause 306--preuiously abetting by aiding the commis- sion of suicide by any child under 12 years of age, any I. Penal CS6 prepared by the Indian Law Commissioners, 1837, pages 1-4.

2. 837 Draft, pages 6-11 (preface).

3. Other punishments need not be enumerated here.

235

insane person, any delirious person, any idiot or any person in the state of intoxication-death or transportation for life, or rigorous imprisonment for life and also fine.

/'V1 {LIEUSGS 308, 309 read with clause 320--voluntary caus- ing hurt in an attempt to commit murder--transportation for life, or rigorous imprisonment for a term which may extend to life but not less than 7 years and also ﬁne).

Clause 380--Dac0ity with muirder---If any one of six or more persons who are conjunctly committing dacoity com- mits murder in so committing dacoity, every one of those persons shall be punished with death or transportation for life, Or rigorous imprisonment for a term which may ex- tend to life and must not be less than 7 years and shall also be liable for fine.

We now come to the reasons given by the framers of the 1837 Draft in support of the various provisions relat- ing to the death sentence suggested by them. As regards death sentence generally, their observations were as fo1lows':--

"First among the punishments provided for offenc- es by this Code stands death. No argument that has been brought to our notice has satisﬁed us that it would be desirable wholly to dispense with this punishment. But we are convinced that it ought to be very sparing- ly inflicted, and we propose to employ it only in cases where either murder or the highest offence against the State has been committed".

They were not apprehensive that they would be thought to have resorted too frequently to capital punish- ment. Rather they were afraid that people might criti- cise the Code as erring on the other side. In this context, they discussed the question whether gang robbery, cruel mutilation of the person and rapes should be punishable with death. "These are doubtless offences which, if we looked only at their enormity, at the evil which they pro- duce, at the terror which they spread through society, at the depravity. . . . which they indicate, we might be includ- ed to punish capitally. But atrocities as they are, they cannot, as it appears to us, be placed in the same class with murder." "To the great majority of mankind, noth- ing is so dear as life. And we are of opinion that to put robbers ravishers, and mutilators on the same footing with murderers is an arrangement which diminishes the security of life?"

They observed, that there was a close connection in practice between murder and most of those offences which came nearest to murder in enormity. The offender in 17837 Draft, Note A, page 1, top.

2. 1837 Draft, Note A, page 1, middle.

General Principl c for death sentence.

Robber)' and rape in 1837 Dfraft.

Offence against property.

Commuta-

tion.

Compensa-

tion.

236

those offences had always in his power to add murder to his guilt. The same opportunities, etc., which enabled a man to rob, to mangle, or to ravish, would enable him to go further and to despatch his victim. By doing so, he would remove the only witness of the crime. If the punishment of the crime which he has already committed be exactly the same with the punishment of murder, the offender would have no restraining motive. "A law which imprisons for rape and robbery, and hangs for murder, holds out to ravishers and robbers a strong inducement to spare the lives of those whom they have injured. A law which hangs for rape and robbery, and which also hangs for murder, holds out, indeed if it be rigorously carried into effect, a strong motive to deter men from rape and robbery, but as soon as a man has ravished, or robbed, it holds out to him a strong motive to follow up his crime with a murderl."

Regarding crimes against property, the framers of the draft observed'~', that a great shock would be caused to public feeling if, While the most atrocious personal out- rages (short of murder) were exempted from punishment or death, that punishment was to be inﬂicted even in the worst cases of theft, cheating, or mischief.

Regarding the power of commutation it was observed that it was evidently ﬁt that the Government should be empowered to commute the sentence of death (without consent of the offender) for any other punishment.

Of some interest are the observations regarding com- pensation for crime". The framers recognised that this was a matter of the law of procedure, and of civil rights. But they were decidedly of the opinion that "every person who was injured by an offence ought to be legally entitled to a compensation for the injury" and recommended that in every case in which ﬁne was part of the punishment of and offence, it ought to be competent to the tribunal which has tried the offender (acting under proper checks) to award the whole or part of the ﬁne to the sufferer, provid- ed that the sufferer signiﬁes his willingness to receive what is so awarded in full satisfaction on his civil claim for reparation. They thought it likely that" this plan would be in great majority of cases render a civil proceed- ing unnecessary.

We may now refer to their discussion relating to speci- ﬁc crimes.

1837 Draft, Note A, page 1, middle.

1837 Draft, Note A, page 2, top.

1837, Draft, Note A, page 9, middle and bottom. . 1837 Draft, Note A, page 10, top.

+".*'!".""

237

Homicide.--The question of illegal omissions was elabo- rately considered'. The 'expression "causing death" in the deﬁnition of voluntary culpable homicide was explained, and the View was expressed that acts or illegal omissions which did not ordinarily cause death, or caused death very remotely, need not be excepted. There was undoubtedly a great difference between acts causing death immediately and those causing a death remotely, or between acts certain to cause death and those which cause death only under very extraordinary circumstances. But the difference was one to be considered by the tribunal when estimating the effect of the evidence in a particular case, not by the legislature in framing the general law. It would require strong evidence, they said to prove that an act of a kind which very seldom causes death, or an act which caused death very remotely, has actually caused death in a parti- cular case. It will require still stronger evidence to prove that such an act was contemplated as likely to cause death. But if satisfactory evidence proved that death was so caused voluntarily, it need not in their opinion, be cxclud- ed from the punishment for voluntary culpable homicide."

The case of homicide by words was considered. A verbally directs Z to swallow a poisonous drug. Z swal- lows it and dies. This should be homicide in A and for the purpose, speaking should be considered as an act3.

Regarding the case of a person who died of a slight wound which, from neglect or from the application of im- proper remedies, has proved mortal, the framers saw no reason in excluding it from the general rule. They noted, that in India, fear, neglect and bad treatment were far more common than good medical treatment'.

The scheme of the proposed section relating to homi- cide was that voluntary, culpable homicide was murder unless it fell within three mitigated forms, namely, (1) grave and sudden provocation (in which case it was "man- slaughter"), or (ii) committed by consent or (iii) commit- ted in defence?

Regarding, provocation, the framers agreed that homi- cide in such cases ought to be punished, in order to teach men to entertain respect for human life and give them a motive for governing their passions; but homicide commit- ted in violent passion on provocation should not be visited with the highest penalties of the law. To treat such a person in the same way as the law treated a murderer

1. 1837 Draft, Note M, pages 53-56. . 1837 Draft, Note M, page 57, top. . 1837 Draft, Note M, page 57, middle. . 1837 Draft, Note M, page 58.

. 1837 Draft, Clauses 295, 297, 298 and 299.

kn-$sU)N Provocatio n.

Homicide by con-

sent.

Reasons fo punishing murder severely.

238

would be highly inexpedient, would shock the universal feeling of mankind and would engage the public sympathy on the side of the oﬂender against the law'.

Provocation by words was also considered, and the rule of the English law not recognising the effect of anger excited by words alone was criticised? If a man felt an insult more than a wound, it did not show that he was a man of peculiarly bad heart.

Homicide by consent was treated as a mitigated form. Such an act should be punishable, of course, because a wise law--giver would desire to prevent such death, if it were only for the purpose of making human life more sacred to the multitude. Consent ought not therefore be a justification for the intentional causing of death'? But they felt that it should not be punished as severely as murder, for these reasons:--

(i) The motives which prompt man to the coin-

mission of the offence were generally far more respect- able than those which prompted men to commit murder;

(ii) Such crime was by no means productive of so much evil to the community as murder. It did not produce general insecurity or spread terror through society. When the law punished murder with seve- rity, it had two ends. One end was that people may not be murdered, and another that people may not live in constant dread of being murdered; and the second was perhaps more important that the ﬁrst. This "property" of the offence of murder was not found in homicide by consent'.

It was also noted, that the burning of a Hindu widow by consent was not (even under the law then in force) punished as murder, though it was an oﬂence under the Regulations in force in the Presidencies.

Regarding homicide in self defence, the framers admit- ted that they were "forced to leave the law on the subject of private defence in an unsatisfactory state". They ex- pressed the fear, that it must always continue to be one of the least precise parts of every system of jurisprudence. The portion of the law relating to homicide in defence must necessarily partake of the imperfections (of law of self-defence). The reason for treating this kind of homi- cide as less than murder Was, that law itself invited men to the very verge of the crime designated as voluntary culpable homicide. The law authorised acts which were 1, 1837 Draft, Note M, :3 age 59, second to fourth paragraph. 2_ 1837 Draft, Not: M, pig», 59' ; t two prragraphs.

3. 1837 Draft, Nctc B, page 16, bottom and page 17, top.

4. 1837 Draft, Note M, page 6x, bottom.

239

very near to homicide, and this circumstance greatly miti- gated the guilt'.

The tojoic of causing death try say. rashness or negli- gence as to indicate want of due regard for human life does not seem to have been separately dealt with in the notes, though clause 304 made it punishable with impri-- soninent up to two years or tine. sic.

Brit death in cause of fr.-lon'=:--#i.c_ the situation where a person engaged in the commission of an offence causes death by rashness negligence ' vitioii or (without any in;

to cause death or knowledge that it is likely to (raise oeath. etc.) was elaborately discussed. along: with the situation where a person engaged in the is-...vznmissi<>n of 2:'.- offence caused death by pure accident".

Attempts to commit. murder and atlenipt to cornnii: 1;:-e "mitigated forms" of a voluntary culpable homicide were explained' and illustrated. An interesting exainple gi'-.«'»;>n was_----A sets poisoned food before Z. Z does no'; swallow enough of the poisoned food to disorder nun A iould be treated as guilty of a Crime of a most atrorzious descrip- tio-'5'. It was emphasised. that such an act (i.e. attempt to commit murder) should be punishable notwl hstan-ding that it does not amount by itself to assault, trespasg. or hurt. lf hurt was caused in an attempt to commit rnurdei: it would be punishable (under clause 320) with transporta- tion for life, etc., where murderous intention is made out severity of hurt should not be a circumstance to be con-- sidered in apportioning punishment though it may be im-- portant as evidence.

Treason was discussed in detail. It was noted, that there was some doubt as to whether the statute law of England (regarding Treason) was binding on natives. Apart from the Bombay Regulation 14 of 1827 (wherein there was a sweeping clause empowering the courts to award punishment in any case in which they conceived that morality and social order required protection), treason was not an offence under any other Regulation. "The Mahomedan law might possibly be so Violently strained as to reach it in Bengal and in the Madras Presidency." But those provisions could not be retained. That is hy a speciﬁc section was proposed on the subject. Regard- ing the Royal person, it was felt that it was impro':oable that any English King would visit the Indian dorninions, and therefore specific provision was not necessary. But levying of war against the British Crown should. it observed" be made punishable. The framers of the l83T I. 1837 Draft NOIC M, page 62, middle. 7

2. 1837 Draft ,\'ot« M, pages 63, bottom, 6.; and 65, middle, and clause 305.

3. 1837 Draft, Note M, page 66, top and middle.

4. n73 Draft of the lndian Pcml ('odr:, Page L\'otv M, pagi 69, Second paragraph.

Rash negligent homicide.

'l'rcaso 240 Code also explained1 why the anomalous position regard- ing treason prevailed. The British Rulers in India, in the beginning, disguised their real power "under the forms of vassaiage", and left "the Mogul and his Viceroys the empty honours or' a Sovereignty which was really held by the Company". This policy was abandoned only slowly and by degrees. Hence it was impossible to point out the parti- cular time when the "natives" became British subjects.

Reasons for making abetment of hostilities against the Government in certain cases a separate offence (-instead of leaving it to general abetment) were also explained?

Firstly, the general rules of abetment would not reach a person who, while residing in the British territories abet- ted the waging of war by a foreign prince against the British Government. (The foreign prince himself would not be guilty of an offence by waging such war). Second- ly, though in general, a person who is a party to the Cri- minal design which has not been carried into effect ought not to be punished as if the design had been carried into effect. yet an exception should be made with respect of High offences against the State. Crimes against the State had this peculiarity that if they were successfully com- mitted, the criminal was "almost always secure from punishment." After murder, the murderer is in greater danger than before murder. "But the rebel is out of danger as soon as he has subverted the Government." Hence the Penal law "should be made strong and sharp against the first beginning of rebellion, against treasonable designs, which have to be carried no further than plots and pre- parations." For this reason, such plots and preparations should not be left to the ordinary law of abetment.

Mutiny----Detailed reasons for punishing abetment of mutiny were given? A person who, not being himself subject to Military law, extorts or assists those who being subject to Military law, commit breach of discipline would "be a proper subject of punishment". But the general law respecting the abetting of offences will not reach him, be- cause the Military delinquency which he has abetted would not be punishable by this Code, and therefore would not constitute an "offence". Explaining their approach regard- ing punishment for such abetment, the framers of the 1837 Report stated that while the general rule which they had adopted was that the punishment of the abetter should be equal or proportional to the punishment of the person committing the offence, yet in this case they had depart- ed, for these reasons :--

"But the Military penal law is, and must necessarily be, far more severe than that under which the body of the

1. 1837 Draft of the Indian Penal Code, Note p2g«: 28, top.

2. 1837 Draft, Note C, page 28, middle.

3. 1837 Draft, Note D, page 30, bottom.

241

people live. The severity of the Military law can be Justi- tied only by reasons drawn from the peculiar habits and duties of soldiers, and from the peculiar relation in which they stand to the Government. The extension of such severity to persons not members of the lvlilitary profes- sion appears to us altogether unwarrantable." They also added that if a person "not in Military" who abetted a breach of Military discipline was made liable to a punish- ment regulated "according to our general rule by the punishment to which such a breach of discipline renders a soldier liable, the whole symmetry of the penal law would be destroyed." A person who induces a soldier to disobey any order of a commanding officer would be liable to be punished more severely than a dacoit, ravisher, etc. _ Perjutry--The framers of the 1837 Draft expressed this view :# "If such false evidence actually causes death. the person who has given or fabricated it falls under the definition of murder, and is liable to capital punish- ment. In this last point, the law, as we have framed it. agrees with the old law of England, which. though in our opinion, just and reasonable, has become obso~ lete"'.

Dacot'ty----The following observations are interesting2:----

"His Lordship in Council will perceive that we have provided punishment of exemplary severity for that atrocious crime, which is designated in the Re- gulations of Bengal and Madras by the name of Dacoity. This name we have thought it convenient to retain for the purpose of denoting, not only actual gang robbery, out the attempting to rob when such an attempt is made or aided by a gang."

General view of criminal law as prevailing in 1837.

A picture in brief of the position regarding criminal law as obtaining in 1837 will be found in the Law Commis- sioners' Report of that years"

The printed draft of the Indian Penal Code was sub mitted to the Government of India on 14th October, 1837. Thereafter, Government requested the Indian Law Com- missioners to examine the opinions received on the 1837 draft and also to study the draft Act contained in the seventh Report of the Commissioners on Criminal Law of England and to give their Report accordingly. The I. 1837 Draft, Note G, page 42, bottom.

2. 1837 Draft, Note N, page 79, middle.

3. 1837 Report, main Report, pages I to 4.

17--122 Law.

242

Indian Law Commissioners submitted in 1846 their Report' (First Report) of the draft Penal Code. Later, in 1847, they submitted their Second and concluding Reportz (Second Report on the Indian Penal Code) on 24th June, 1847. After this, Sir Lawrence Peel, Chief Justice of the Supreme Court at Fort_Williams (previously Advocate- General), having received from the_ Government the Report of the Law Commissioners, studied it and gave his observations to the Government in 1848".

It is not necessary to state each point dealt with_by the Law Commissioners in 1846; but a few points which are still of interest may be noted:----

(a) Homicide--Death caused by words was speci- fically dealt with in the discussion in the 1837 draft, and the 1846 Commissioners also dealt with it in detail and came to the conclusion" that if death is certainly caused by words deliberately used by a person with intention to cause that result, or with the knowledge that in the condition of the party to whom the words are spoken it is likely that the words will make such an impression on him as to cause death, and without any such excuse as it admissible under "General Excep- tions", such person should suffer the penalty of culp- able h0micide:----

Here is the wilful doing of that which is known to be likely to produce evil, manifesting the mens Tea. essential to criminal responsibility, the evil produced is death, the eﬁicient cause,--the words spoken. It is scarcely agreeable to reason, that having traced the effect to its cause, the law should refuse to acknow- ledge it as an eifective cause; or that the Judge should be obliged to say, it is true that the effect was produc- ed by the operation of the Words, but Words in law are not an act, therefore the speaker is not criminally responsible.

Death resulting from a slight wound which from neglect or from the application of improper remedies has proved fatal was considered in detai15.

Provocation by words was speciﬁcally considered, and the proposal in the original Code to cover such provocation z'.e. not to recognise any distinction bet- ween provocation by mere words or gestures and other provocation, was approved".

I. Report dated 23-7-I846, of the Indian Law Commissioners, on the Draft Indian Penal Code.

2. Report dated 24-6-1847 (Second Report of the Indian Law Commis- sioners, on the Draft Indian Penal Code).

3. Observations of Sir Lawrence, Peel, on the Draft Indian Penal Code (1848).

4. I846 Reort, page 77, paragraph 249.

5. 1846 Report, pages 77-80, paragraphs 250 to 257.

6. 1846 Report, pages 83-84, paragraphs 269 to 273.

243

Other points relating to provocation were consi- dered'.

The topic of voluntary culpable homicide by con- sent was considered and the proposed provision that such homicide should not amount to murder was approved, with a slight modification, namely, the con- sent should have been given not only by a person above 12 years of age but by a person capable of mak- ing an intelligent choice?

Voluntary culpable homicide in defence---the provi- sion reducing it to manslaughter--was approved in principle".

Regarding punishment for murder, a comment on the 1837 draft had been received from Mr. Hudleston, :1 Judge of the Sudder Court of Madras," stated5--"I prefer the provisions of our Regulations, which deﬁne the grounds for mitigating the capital punishment." On this comment, the 1846 Report noted'', that Mr. Hud. leston had not speciﬁed the provisions which he had in mind. "In the general law relating to murder in the Madras Regulations, which Mr. Hudleston must be understood to refer to, there is no such deﬁnition. But a discretion is given to the Judges not to pass sen- tence of death, if there appear to them to be "alleviat- ing circumstances" in the case--a discretion suﬁ'icient- ly arbitrary."

The topic of rash or negligent homicide--clause 304 of the 1837 draft----was approved after discussion.7 The case of a man attempting to commit a rape on a woman and in the attempt involuntarily causing her death--clause 305, illustration in the 1837 draft--wa.s considered, and the proposal in the draft approved''. [The illustration was to the effect that in such a case, the homicide was culpable but not voluntary, because death was an effect wholly unexpected and unconnect- ed with the intention and act of the party, except by accident. Mr. Pyrne (Judge Sudder Court Bombay) had stated that it was possible that rape of delicate woman may cause death for example, rape was com- mitted on an infant of 6 or 7 years of age; death ensues therefrom}. (He had stated that a recent case 1846 Report, pages 85-86, paragraphs 274-279.

1846 Report, page 92, paragraph 294.

1846 Report, pages 93-95, paragraphs 296-302.

See 1846 Report, page 2, last paragraph and side rote. 1846 Report, page 95, paragraph 303.

1846 Report, page 95, paragraph 303.

1846 Report, pages 96-100, paragraphs 309 to 314. I846 Report, page too, paragraphs 315 to 317.

'/3'-"F"'."'."':"""' Mitigating circumstan-

ces.

Rape.

244

had come before the courts). As to this, the Report pointed out that it was voluntary culpable homicide death being likely.

(b) Abetment of suicide------Clause 306 of the 1837 Report had proposed the punishment of death (apart from other alternative punishment) for abetment of suicide of a child under 12 years, any insane person etc. A comment from Mr. J. F. Thomas had been re» ceived to the effect that the inducement to commit such crimes must in the ordinary course of events be so exceedingly slight that it scarcely seemed necessary to place the offence on a level with the most atrocious murder, and annex the penalty of death. In his opi- nion, a lesser penalty would suﬂice to check the com- mission of the crime. Mr. Thomas particularly refer- red to the deﬁnition that "acts" included an illegal omissions and pointed out that instances of suicides which could be prevented by persons were numerous and "at present they have not the most remote idea that they are acting criminally" and that they should not be held liable to the heavy penalties. As to this, the 1846 Report1 observed that clause 306 was based on the same principles as clause 298, second proviso of the 1837 draft (homicide with consent of such per- sons to be murdered), in as much as the offence of causing death of persons concerned (z'.e. persons under age or under disability) was regarded as murder even though death was caused with their consent and, therefore. clause 306----abetment of suicide--attached the penalty of murder to the offence described there- in, when committed in respect of a person under age or disability. The clause was approved subject to modiﬁcations regarding age of 12 years being replaced by an age where a person could form an intelligent judgment. It was also observed (regarding illegal omissions) that the rule would fail to be applied under these clauses chieﬂy in cases Where a person bound to take care of the person of another had, by an illegal omission of his duty, intentionally given him the opportunity of killing himself or permitted him to obtain the means of killing himself, or (second- ly) also in the case where one person, seeing another person preparing to destroy himself, (say by hanging) allowed him to accomplish his purpose without any attempt to prevent him, if, (as may be expected), the law of procedure makes it a common duty incumbent upon all men to assist in preventing offences about to be committed in their presence. The intention here in the second case would be inferable from the cir- cumstances.

_ (c) Attempt to commit murder--Atternpt to com- mit voluntary culpable homicide was. under clause 309

1. 1846 Report, pages IOI-I02, paragraphs 321----324.

245

of the 1837 draft, punishable with imprisonment up to 3 years. The framers of the 1846 Report considered, that this caluse was meant to apply . to attempts to cause death under circumstances which, if death en- sued, would make the offence to be voluntary culpable homicide of one of the mitigated descriptions; 'because attempt to commit murder was expressly provided for by another clause 303. They therefore recommended the necessary clariﬁcation? As regards attempt to commit murder, clauses 308 and 320 had this effect, that where hurt was caused, the offence would be punishable with transportation for life or rigorous im- prisonment for life but not less than 7 years and also fine. No change was recommended on that clause?

((1) Perjury--In the 1837 draft, clause 294, dealing with voluntary culpable homicide read with illustra- tion (d) thereto had this effect, that if A falsely depos- ed before a Court of Justice that he saw another person commit a capital crime and the other person was con- victed and executed in consequence, A was guilty of the offence of voluntary culpable homicide, (If A had the intention to cause death or knowledge of likeli- hood of his causing death, etc.). This proposal was discussed in the 1846 Report. It stated'' that "the offence in question falls naturally within the definition of voluntary culpable homicide, which could not be expressed properly in terms that did not cover it"

But, it went on to say,--"and but that we think it desirable to restrict rather than to extend capital punishment, and that it would be in effect an exten- sion of it to make the perjurer liable to the convicted of homicide, which would be murder under Clause 295, when his false swearing has caused the condemnation and execution of an innocent person, we would not hesitate to recommend that this part of the Code be left untouched. For the reason last stated, however, we would advise that the illustration (d) be omitted under clause 294, and that Clause 191 in the Chapter of offences against public justice be declared applica- ble generally to the offence of giving false evidence. . . . with the intention of causing a person to be convicted of a capital crime, whether the object intended be effected or not. The punishment which may be awarded under this Clause is transportation for life, or rigorous imprisonment for life or for a term not less than seven years, and ﬁne.".

(e) Dacoity with murder--By Clause 380 of the 1837 Draft, where a murder was committed by any one of a gang of the dacoits, every one of the gang was I. 1846 Report, pages I04------I06, paragraph 337,

2. 1846 Report, page 105, paragraph 339-340. 3- I846 Report, page 82, paragraph 266.

246

ith death. The 1846 Report noted, that by the Regulations in force in Bengal and Madras, a single person going forth with an offensive weapon with intent to rob and perpetrating etc. a robbery, was also guilty of dacoity, and that by those Regulations "leaders of gangs or other heinous offend- ers convicted of a repetition of the crime or Without such repetition of a degree of cruelty, violence, or other aggravating criminality, which under the discretion allowed by the Mahammadan Law were punishable with death . . . . .." were liable to the sentence of death if the case appeared to the Nizamut Adawlut to rend- er such heinous offenders liable to such punishment. It also noted, that by the Bombay Regulation 14 of 1827, section 37, gang robbery accompanied with force was punishable in any of the modes speciﬁed in sec- tion 3 (which included death). The 1846 Report how- ever did not consider it advisable to extend the punishment of death to any case other than that al- ready given in clause 380 of the 1837 Draftl.

liable to be punished w It also noted the suggestion? that heads of gangs of dacoits should be sentenced to death, because in such cases death was desirable "as an example" to the country. This was a suggestion by Mr. Giberne3, a Judge of the Sudder Court at Bombay. The Report did not consider it advisable to extend the punishment of death to any case besides that dealt with in clause 380. But it did express agreement with the suggestion of Mr. J. F, Thomas that there ought to be a great distinction in adjudging punish- ment between persons proved to be leaders, or regular or habitual members of a gang following robbery as a pro- fession on the one hand, and poor coolies enticed to swell the number on the other hand. (Mr. Thomas had suggest- ed' transportation etc. In the case of every leader, regular member of the gang, every person armed with weapon capable of inﬂicting death, etc.).

For the present purpose, it is unnecessary to deal in detail with the later discussions relating to the draft Indian Penal Code5. On the 30th May, 1851, the revised edition of the Code was circulated to Judges for comments. Later, in 1854, a Committee consisting of Barnes, Peacock, Sir James Colville, J.P. Grant, D. Elliot etc. was asked to consi- der the revised Code. That committee did not recommend any substantial alterations in the original Code. The Code I. 1846 Report, page 155, paragraph 542 read with. paragraphs 54 and 541.

2. 1846 Report, page 155, paragraph 542, read with paragraph 535.

3. See 1846 Report, page 2, last paragraph and side note.

4. 1846 Report paragraph 533 and 542. The relevant material is also not easily available. See Rust, Hurt &

5. Homicide (1958), page 45- 247 was read for the first time on the 28th December, 1856 and for the second time on the 3rd January, 1857, and referred to a Select Committee.' It was then passed by the Legis- lative Council of India; it received the assent of the Gover- nor--General on the 6th October, 1860.

APPENDIX XXVIII A.I\'1'ENDMEN'1'S RELEVANT TO CAPITAL PUNISHMENT, A1~"I'ER me PASSING or THE INDIAN PENAL CODE (1860).

Amendments to Indian Penal Code after it was passed may be noted:--

Sections 302, 303, I21, 132, I94, I94, "Imprisonment for life" has been 305, 307, Indian Penal Code. substitued for 'trarsportation for life", (Act 26 of 1955, section 117 and Schedule), with effect from I-I-I956.

Section I21 . . . . . Sentence of forfeiture was replaced by ﬁne, by Act 16 of 1921, sec-

tion 2.

The position according to the Hedayag was this--if any In gang- one of a gang of robbers commits murder, the prescribed mbbery punishment is inflicted upon the whole; because the punish- drf,?,r_ ment in this instance is considered as a penalty for the den assault of the whole, which is established by each of them being aiding and abetting to the others' Causing death by negligence---"whoever caused the 304A Indian death of any person by doing any rash or negligent act not Plenal ggde amounting t.o culpable homicide shall be punished with im-- mm' )' prisonment of either description for a term which may extend to two years, or with ﬁne, or with both."

(Inserted by Act 27 of 1870 section 12).

307, 2nd paragraph Indian Penal Code "Imprisonment for life" has been 307, 2nd Sl.1bS,t'1t\1t6d for "transportation for paragraph l1f'5~ Indian Penal [Act 26 of 1955, section 117 and Code- Schedule (w.e.f. 1-I-1956)] 357(5), C1'imif1a1PI0C€dUre Code . Reasons for lesser sentence need 357 (5); not be given (1955 amendment). Criminal Procedure er a amendments, in Indian Pcrzl Verbal char es d b Ada ' V bl Code.

Code and Criminal Procedure Code. of laws ordersmié-Inaedey fr0rI'¥1)n:tl'l"I31g 2/,f,§1:,Zlmenm to time, and by Act 36 of 1957. in Indian Penal Code and Criminal Procedure Sections 60-61, Criminal Procedure Cmitttd by Act 16 of 1921. Code.

Code, (Forfeiture). Sections 60-61, I. Cf. Rust, Hurt and Homic:'de>(I958)','page 45. %:(i):'ei§1':1re

2. See Beaufort Digest of Criminal Law (1846) page 37, para-graph 129. Code,

3. Hed. TranS., Vol. 2, page 133. (Forfeiture).

248

APPENDIX XXIX INDIA---PROPORTION or MURDERS TO ONE MILLION INHABITANTS (1953-1962) INDIA----No. of murders propombnate' to one million inhabitants I953----I962.

I953 . . . . . . . . . 27' I 1954 . . . . . . . . . 269 I955 . . . . . . . . . 26'7 I956 . . . . . . . . . 27- 8 I957 . . . . . . . . . 28-9 1958 . . . . . . . . . 29-6 1959 . . . . . . . . . 29-8 1960 . . . . . . . . . 25 I961 - . . . . . . . . 26 I962 . . . . . . . . . 26 APPENDIX XXX INDIA---MERCY PETI'I'IONr---PERCENTAGE or PETITIONS IN WHICH DEATH SENTENCE WAS COMMUTED Year (Rough percentage?) 1945 . . . . . . . . . 7 I946 . . . . . . . . . 3 I947 . . . . . . . . . 2' 5 1948 . . . . . . . . . 4 I949 . . . . . . . . . 20 I950 . . . . . . . . . 25 1951 . . . . . . . . . 39 I952 . . . . . . . . . 25 I953 . . . . . . . . . 22 I954 . . . . . . . . . 25 I955 . . . . . . . . . 22 I956 . . . . . . . . . 35 I957 . . . . . . . . . 40 I958 . . . . . . . . . 27 I959 . . . . . . . . . 21 I960 . . . . . . . . . rs 1961 34

1. Figures are taken from "Crime in India _" for the years I96C----I962, and from the Home Mm1stry's note sent [0 the Law C01'1'),IT1iSS10X1, for earlier years.

2. Worked out on the basis of ﬁgures supplied by Ministry of Home Affairs.

249

('be ﬁgures for later years are as follows :--

Number of Number of cases in which Number Year mercy eti-- death sentence was com- of etitions . P . . .9 trons I'€C61VCd muted by the Presrdent to re)ected ._.._ from convicts --------~----

under sentence __._.,_.._ of death Imprisonment IO years for life R. I. 1962 . . . 188 61 r 126 1963 . . . I53 41 . . 112 1964 . . . I94 66 . . 128 APPENDIX XXXI SUPREME COURT STATEMENT OF CRIMINAL APPEALS AND SPECIAL LEAVE PETITIONS INVOLVING CAPITAL SENTENCES (I957 T0 30'1'H SEPTEMBER, 1963). SUPREME COURT Statement of Special Leave Petitions z'nvol*uz'ng capital sentence in respect of the period from I-I-I957 to 31-3-1962.

Year No. ﬁled Granted Disnfsscd in Limirc I 2 3 4 1957 I62 25 137 I958 196 16 I80 1959 229 I5 2 I960 210 17 193 1961 I95 16 179 W 1962 (Upto 31-3-I962) 66 8 55 TOTAL 1058 97 958 plus 3 pending on 31-3-1962.

093

Statement of criminal appeals involzdrzg capital sentence in respect of the period from I--I--I957 to 31-3-1962.

Appeals by Certi-

Appeals by Special ﬁcate etc. Leave Pending at the end of the Year No. ﬁled year Granted Dismissed Granted Dismissed 1957 32 1 9@ 20 2 1958 I7 2 2(a) I2 3 1959 27 2 2 2% 14 1o .4 I960 20 4 45 6 I6 1961 20 2* 4 2 I6 12 1962 (Upto 31-3-1962) I0 I .. 33 18 (2 Appeals by certiﬁcate and 16 by Special Leave pending on 31-3-1962).

TOTAL 126 4 14 19 71 18 Pending on 31-3-1962.

*Reduced to Life Imprisonment.

@ Out of 9 matters in was remanded for retrial.

(a) Out of 2 matters in I matter Capital Sentence has been reduced to life.

%Out of 2 matters in one sentence has been reduced to that of life.

{Out of 4 matters, in one sentence has been reduced to that of life.

_3 matters Capital Sentence has been reduced to life, in one matter sentence has been reduced to 7 years, in one the ease I92'.

Statement of criminal appeals involving capital sentence in respect of the period from I-I-I962 to 30-9-1953- Appeals by Certi- Appeals by Special ﬁcate etc. Leaves; Pending at the end of the Year No. ﬁled V981' Granted Dismissed Granted Dismissed I962 28 1 2 10* 22 5 12 Pending at the end of 1961. , I963 (Upto 30-9-I963). 11 I 1 8@ 5 1 By Special Leave. TOTAL 39 2 3 18 27 I Pending on 30-9-1963.

*Out of IO matters in 3 matters Capital sentence has been reduced tolife imprisonment.

@Out of 8 matters in I matter Capitl sentence has been reduced to 3 years' Rigorous imprisonment and in I matter State Government commu- ted the sentence to life, out was acquitted by this Court.

398

Statement of Special Leave Petitions involving capital sentence in respect of the period from I-I-I962 to 30-9-I963.

Year No. ﬁled. Granted. Dismissed in limine. 1962 215 25 190 1963(Up to 3o-9-1963). I72 9 162 plus one pending as as on 30-9-1963.

TOTAL 387 34 352 plus one pending on 30-9-I963.

Statement of criminal appeals involving capital sentence in respect of the period from I--I-I963 to 31-12-1963.

Appeals under Art. 134(x)(A) Appeals by Special Leave Year No. ﬁled. Pending at the end of the Granted Dismissed Dismissed. year. 1953 21 1 I 7 9* *Out of 9 matters pending at the end of the year one was appeal under Article I34(I)(a).

TOut of 9 matters granted in Appeals by Special Leave in 3 matters Capital sentence has been reduced.

89% Statement of Special Leave Petitions mvolving capital sentence in respect of the period from I-I-I963 to 31-12-1963 Year No. ﬁled Granted 1963 237 I7 Dismissed in limine 200 plus 30 pending as on 1-1-I964.

I798 APPENDIX XXXII IIIGH COURTS--STATEMENTS RELATING TO CASES INVOLVING CAPITAL PUNISHMENT Aauhabad Nndhra Pradesh Assam Bombay .

Calcutta Gujarat .

Kerala Madras Madhya Pradesh Mysore Orissa Patna Punjab Raiasthan (I957 10 1962) Index to High Court Figures.

Based on Sl. No. 49 in the ﬁle.

Based on Sl. No. 45 in the ﬁle.

Based on $1. No. 20 in the ﬁle.

Based on Sl. No. 46 in the ﬁle.

Based on Sl. No. 28 in the ﬁle.

Based on $1. No. 191 in the ﬁle. Based on S]. No. 26 in the ﬁle.

Based on Sl. No. 21 in the ﬁle and Sl. No. 110 in the ﬁle.

Based on Sl. No. 29 in the ﬁle.

Based on 81. No. 48 in the ﬁle Based on Sl. No. 43 in the ﬁle.

Based on Sl. No. 32 in the ﬁle.

Based on Sl. No. 95 which replaces Sl.

No. 74.

Based on Sl No. 21 in the ﬁle.

255

Year ALLAHABAD HIGH COURT Statement showing Crz'm2'nal Cases under appellate jurisdz'ctz'on Pending from the Institutions Tutal the previous during the year year 1957 3:727 2,547 6:274 1958 4,061 13,102 7,163 1959 4,007 32225 7:232 1960 2,459 2,826 5,285 1961 1,106 2,723 3,829 Sentences passed Altered Conﬁrmed Pending at the end of the year.

979 1:234 -4:061 1:417 B739 4007 2,309 2,464 2,459 2,147 2,032 1,016 1,434 1,269 1,216 998 W\9'I (31-81 Year 1957 1958 1959 1960 1961 ALLAHABAD HIGH COURT Statement xlmrving Criminal Cases under revzkiorzal jurisdiction Pending from the previous year 2,192 1,216 882 Institution during the year 2498 3:033 2,680 2,918 2,788 Total 5:030 5:573 4,872 4:134 32570 Altered Sentence Passed 1:273 1,464 1:274 1,367 871 Conﬁrmed 1,217 1:917 2,382 1,885 1:929 Pending at the end of the year 2:540 2.19:

1.21.3 so ('/3 to 870 [*3 x] Ye:r 1957 1958 1959 1960 I961 ALLAHABAD HIGH COURT Statement snowing Criminal Cases under conﬁrming jurisdz'cIz'on Pending from Institution during the previous the year year 70 197 60 248 43 235 51 216 44 202 Total Sentence Passed Altered Conﬁrmed Pending at the end of the year 120 87 60 159 96 43 134 93 51 127 96 44 I24 78 44 893 ANDHRA PRADESH Szarcmcm 3/zozciizg I/zc particulars of cases of Capital Pzmis/zmenz dzmhg the p».rit'al' from 1-I-I957 to 31-12-1961.

CONFIRMING JURISDICTION:

No, of cases referred to the High Court for conﬁrmation of death 5 ant-ences Out of these cases I. The number of cases in which sentence of death was conﬁrmed

2. The number of cases in which sentence of death was modiﬁed

3. The number of cases in which sentence of death was set aside APPELLATE JURISDICTION :

No. of Appeals against the orders of acquittal u/s 3c2, l.P.C. ﬁled in the High Court . . . . , . .

Out of these appeals

1. Numoer of appeals in which sentence of death was passed

2. The number of appeals in which the orders of acquittal were modiﬁed . _ ,

3. The number of appeals in which the orders of acquittal were conﬁrmed REVISIUNAL JURISDICTION :

No. of Revision Cases ﬁled for emiancc-ment of sentence of death No. of Revsion Cases in which dcath sentence was passed 259 242 69 123 50 256 70 184 J) ASSAM HIGH COURT Statement showing the number of capital punishment cases which came to Assam High Court from 1957 to I96] Sentence altered by Sentences conﬁrmed Remarks Year No. of cases which came to Assam High Assam High Court by Assam High Court in appellate Court or conﬁrming juris-

diction I957 I x 1 1958 4 I 2 In one case accused died during the pen-

dcncy of the case.

1959 4 2 2 1960 1 1 x X X X 196x 093 .'i:a:cmmt 5/to-wing the mmzbcr of cases relating to_offenc5x pufzishable -with sentence of death ﬁled in the ﬁigh Court of fudiraturc at Bombay, durmg the perzod from 1-1-1957 to 31-12-1961.

W _ .

_ Revision for enhancement Jury RL'fc1'cncc (ionﬁrmatﬁon cases of life Impri onmcnt u;s 33oz of I.PC.

Appeals against acquittu ls under Section 302, I.P.C.

4 43

4, we 828:3, 8% M3

595.: E doﬁésou 53D W88 we .oZ 658 Hwmmﬂ an .5 8:

52:2,, m.:.%:.. .

8:323 53.: E momma 98 .oZ o.. @8368 dﬁtscum uumsoum 53.5 E 898 .8 153.53../A 62¢ momma we .5355: 130% .duEm.$m oouuucum 53v :2: thﬁo uuuuucom 55.5 E 398 go .02 vuwumam 858 com 58% £033 GM momma mo .oZ uuiuouw munmu me .374, .UBuu_8 momma mo .oZ A65 ummo we $98.: _ Err vunuumwpm mono H, , .5; £3 $3.5 E 898 mo 6% .co.5o:m momma wo .0»/H .8856 3mmo,«o oz 35 ammo mo 5385: Zack con$3m ouuﬁcum 58¢ cant W50 ,, 8.a..w,.m. 539». E. wommo we .02 .UoEm3w UUCU "cum isxﬁuu £053.15 momma mo .34 .wu3o:m momma .«O .02 .3mm._Em_d momma MO H3552 .ﬁo_d momma mo uunwbﬂﬁ ~.m.._GyH.

W A W 1'1!' 1,

(a) (U)

(b)

(a) (0 (<1 i) (C)

(b) (0)

(d) (C) (17)

(a)

(e)

(d) (C) (17)

(a) 6 6 I4 1# «J 27 29 1957 Born.

Nag

(a) (b) (C) (d) (e) (a) (1)) (6) (d5 (a) xb) (6) (d ) (e) (a) (17) (c) (d) ( I3 (23 (3) (5) I958 Bom. . 73 40 12 12 3 3 S 3 2 5 5 27 6 II 11 Tiag. .. .. .. .. .. .. .. .. 5 ..

I 959 Bon1, , 62 41 I2 I2 I I 6 2 4 34 6 24 9 }{ag. .. .. . .. .. .. 3 I 2 ..

I960 Bon1. . 43 34 I8 18 4 2 I 32 6 I8 21 Nag. 7 I 5 1 I961 Bona. 52 39 I6 16 3 2 2 28 4 I9 1o Nag- 5 5 'FoTA1. 259 ISI 58 58 5 5 23 II 13 I64 38 IO! 57 Z93 Bo:n'o9.y lligh Cottri----eontd. EXI"L.'\.NA'1"Ol{Y NOTES :

(I) This H gh Court doss not exsreise Original jttristliction in Crintiital matters.

:2) Fivzu 'es of lnstitutions for a particular year may not rally exuctl matters disposed of during a particular year \\ the - .

y with the ﬁgures of disposals during the same year as some of the vould .nclude cases instituted in the last few months ot the previous year also, and S0l!1'_' of s instituted during the year nuy be disposed of in the lollowing year.

(3)_'71zr_v Reference: The result of a jury Reference willdcpend upon the nature of the Reference and therefore there may he C01l\'i(,'[0l] both when it IS accepted and also when it is rejected. Similarly there may not he any c0nvit:t,0n tlcpenttmg upon the nature of the Relerence even when it is accepted or rejected.

(4) The ﬁgures shown in sub column (a) of Column 5 may not be cxclusve of the ﬁgures in sub--column ([7) of the same column as the accused acquitted in Conﬁrmation cases in respect of the charge u/s 302 of the Indian Penal Code might have been convictgd and sentenced for a lesser otfence e.g. Section 326, Indian Penal Code.

(5) This statement does not include the number of cases of those cases i s not available here, State on 15-60.

instituted and disposed of in the Saurashtra and Kutch Regions, as the rot-imj the same hay ng been transferred to the Gujarat High Court, after the hifutczttion of the B0n1b1l\' *Remanded.

High Court, Appellate s.cle, Bombay, 18th July, 1962.

893 264

CALCUTTA HIGH COURT Statement of Capital Punishment coming before the High Court at Calcutta in it:

Appellate and Original _7urz'sdz'ctz'mz and sentences passed by the High Court in its Appellate and Original _?urz'sdiction during the years 1957 to 1961.

PART I (Appellate side.)

(a) (b) Cases of Sentences passed by the High Court in Capital pu- its Appellate Jurisdiction.

Years nishment -

coming be- Out of the total sentence fore me High Total passed Court in its number of ----.-------------.--------.--..--.--.--._. ---- Appellate sentences Altered in Conﬁrmed jurisdiction passed in respect of in respect for conﬁrma-- respect of persons. of persons. tion. persons.

(Total persons involved) 1957 I3 16 7 9 I958 5 9 4 5 1959 13 5 5 Nil I960 II 11 9 2 1961 22 26 I7 9* *Besides, the High Court awarded death sentence in a Jury, Ref. involvirg ore accused, as the Sessions Judge, referred me case to the High Court owing to his difference with the Jury.

PART II (Original side) a c Period Cases relating to Sentences passed Sentences altered olfences punish-- by the High by the High able by law, Court in its Court in its which came to Original Crim'nal Criminal Appel- the High Court Jurisdiction late Jurisdidion in its Ordinary (Sessions Court) U/Sec. 411A Original Criminal Criminal Pro- Jurisdiction. cedure Code only. 1957 I0 3 Nil 1958 I0 3 Nil [959 I5 2 One sentence of death modiﬁed to imprisonment for life.

1960 9 Nil Nil 1961 8 2 Pending _'-jlirom I-I--§.7 to 52 IO 1 _.--

31-12431.

265

GUJARAT HIGH CO URT Statement showing the number of cases relating to oﬂencex punishzzhle fwitlz death by ltzw which came to the High Court in its appellate revzszonal or conﬂrmmg Jzmsdzctzon durmg the years 1960 and 196:.

Toto'. number of cases 1960 1961 (From 1-5-1960)

1. Total number of murder cases in the State comitted for trial . . . . . 582 568

2. Out of the cases in column (1) above, in how many cases sentence ot-

(z') death was imposed by the trial Court . 4 7

(ii) Life imprisonment was imposed by the trial Court . . . . . 138 124 (z'z'i) Sentence lesser than the life imprisonment was imposed by the trial courts . 136 139

(iv) The accused were acquitted . . . 316 312

3. Out of the ﬁgures in column 2 (1') above, in how many cases the High Court--

(a) confirmed the conviction and sentence of death ; . . . . . . . 3 4

(b) reduced the sentence and/or acquitted the accused . . . . . . I 2

4. Out of the ﬁgures in columns 2 (ii), 2 (iii) and 2 (iv) above, in how many cases the High Court on appeal against the conviction---- (1') (a) Conﬁrmed the sentence . . . 94 85 ([7) reduced the sentence . . . 16 17

(ii) On appeal against acquitta1--

(a) confirmed the acquittal . .~ . 52 53

(b) reversed the order of acquittal and im- posed the sentence of (1) death . . . . . . . . .

(2) Imprisonment for life . . 7 4 (3) Imprisonment for a lesser period . 8 4

5. The total number of cases where the High Court enhanced the sentence from imprisonment oi life to a sentence or death KIERALA HIGH COURT Stalumc/It of cases in which sentences of capital plUl'l'S/IJIICI/I are altered, Conﬁrmed. eIc., by the High (four! of Kora/a duiing the period from 1-1-1957 to 31-12-1961.

Particulars regarding the order of this Total number of cases and year. High Court 1957 1958 1959 I960 1961 Death sentence C01ﬁI'IT1Cd 7 19 19 8 7 Death sentence modiﬁed . . . .1 7 14 11 (v Death sentence set: aside and acquitted _ 6 7 5 3 5 Life sentence conﬁrmed . , . . .36 73 65 (u; 38 15?) on Life sentence modiﬁed N >-« H

-4 >4 X

1) Life sentence set askle and acquitted 7 25 20 15 5 Life sentence enhanced to death I ,, _. R. I. for 10 years under S. 304(1) enhan- ecd to life under section 302 _ , 1 _ _ 1 Sentence of acquittal altered to R. I. for life . . . . . 2 . . I . .

Sentence of acquittal altered to death 3 _ 'I'0TA\L . . . . . ".4 I47 I34 I09 67 NLADRAS HIGH COURT .Suz/amen! 5/la-zvz'11g I/1C mnnbc?' Hf c'a_xL'.x p.'m1'.vIza17lc 'Cl [:11 dvallx by 1.014' «z<'Ir1'*"'/I came IN I/1C 1113:': Ctmri, Illa./«'2'1z.< frmn zinc' Di5I?'i&'f am.' 81 .\;»z'w;.\' L,'ozn~v.\' of the llladms .S':aic for 1/10 1'irz'odj2'ouz 1-1-1957 10 31-12-1961 Appcllalc jurisdicton Rcvisfonal Jurisdicron Co11ﬁirn'1'g jurisdiction Period -«N0. of Scn- Scn- Scn- N0. of Sc11- Scn- N0. of Scn- SCH- CRSCS ICIXCC 1CIlC€ LCDCC CRISCS ECDCC [CDCC CRSCS KCDCC ICUCC passed altered c0n- altered con- altered gon- ﬁrmcd ﬁrmed ﬁrmed From 1-1-1957 10 31-12-1957 . . . I20 120 38 82 8 2 6 101 51 50 From 1-1-1958 to 31-12-1958 . . . I23 I23 44 79 7 I 6 118 62 56 From 1-1-1959 to 31424959 . . . I35 135 43 37 9 2 7 139 63 76 From 1-1-1960 to 31-12-1950 134 134 57 77 IO 2 8 117 66 51 From I-1-1961 to 31-12-1961 . . . I38 138 61 77 1o 2 8 129 (,8 51 TOTAL . . 650 650 248* 402 44 9* 35 504 310:: 294 The particulars under the head 'Ordinary Criminal ]ur-?sd.'ct'('ri ofthe High Court, tutcd into a sessions Division.

*Includes acquittal also.

Madras' are nil, as the C113 of Madras has been consti-

L93 CAPITAL PUNISHMENT Statement for the period I-I~I957 to 3I-I2-I962 (0 <2; <3) <4) (5) Number of cases Number of Of Column Of Column No. 4 number of cases i11 which received, for persons in- No. 2 total consideration of volved in the number ot (a) (b) (c) (d) (6) the High Court cases in CO- cases dispos- _ under Section lumn N0. 2 ed of death sen- death sen- death sen- Retrial was d1SD0S€d Of 371,1-P-C-Pun- tcnce was tence was tcnce was ordered by the death ishable with conﬁrmed modiﬁed reversed (zle. Of amused death acquitted) I957 - . . 151 165 113 60 29 24 I958 - - - I49 I74 I27 57 59 II 1959 - . . I72 I98 140 73 46 20 I I960 - - ~ 149 172 119 62 43 13 1 I961 . . . 154 173 106 46 43 17 1962 . . . 175 235 128 49 43 :1 269 MADHYA PRADESH Information in respect of "Cagital Punishment" for the period I-I-I957 to 31-I2-I96I in the High Court of Madhya Pradesh Class of cases No. of cases Dismissed Altered Death conﬁrmed

1. Criminal Appeals with Criminal References 260 . . I83 77

2. Criminal Appeals by State against acquittal by the Lower Court in cases punishable with sentences of death . . . [30 x06 24

3. Criminal Revisions ﬁled by Stale or party for enhancement of sentence to death . I9 19 . . ..

Statement 5/moirzg the number of conﬁrmation cases (Death sentence) on the A ___.___________ I959 1959 1960 I961 MYSORE HIGH COURT ﬁrmed in the High Court of Mysore at Bangalore during the period from I-I-I957 to 31-12-1961 No. of Death Sen-

Altered during the Conﬁrmed during the Retrial ordered dur-

ppellate and conﬁrming _7urirdz'ctz'on received: sentences passed altered or con-

R emarks tence cases received year year ing the year during the year 18 15 1 2 No Original Jurisdic- tion in respect of these cases.

23 I7 6 Nil 22 16 6 __ 15 I2 2 I I4 9 4 I 92 69 19 4 01.3 271 ORISSA HIGH COURT .S'!atcnze2z' s./zowzbzg the cases of Capital Pltilla'/lillelli received in the High COLD'! of Orissa 121 in or/girzj./, appellczte, 1%.-'tri.»'z'0;z«.2l or cnnjirnzirzg jztrzsdictzoiz and the sentences passed,

-'I/feted or conﬁrmed tlzerein during the period from 1-1-1957 10 31-12-1961.

1. Cases received in the Original, appellate and revisitinal jurisdiction - - -

~ Nil

2. Cases received in the confirming jurisdiction 2 N0. of cases Sentence No. of N0. of l\o. of Year received passed cases in cases in cases in during the which which which year sentences sentences sentences were were were altered reversed conﬁrmed and accused acquitted 1 2 3 4 5 6 1957 . D. R. 1/57 . Reference dis- .. 1 .. charged and accused persons are acquitted . . . . . 1 I956 . D. R. 1/58 . Reference accepted and sentence cori-

ﬁrmed . . . . . I D. R. 2,758 . Do. .

I959 . D. R. L959 . Reference discharged and sentence al tered t0impris0n--

ment for life 1 ,_ _ 1960 . D. R. I/60 . Reference discharged and accused ac-

quitted . . __ __

1). R. 2160 . Reference discharged and the sentence al-

tered imprison-

me nt for life 1 D.R. 360 . Reference discharged and accused acquitted 1961 PATNA HIGH COURT Capital Punishment CONFIRMING ORIGINAL APPELLATE REVISION JURISDICTION Year Con- Modi- Set Con- Modi- Set Con- Modi- Set Con- Modi- Set ﬁrmed ﬁed aside ﬁrmed ﬁed aside ﬁrmed ﬂed aside ﬁrmed ﬁed aside (I) (2) (3) (4) (5) (6) (7) (9) (9) (I0) ( I I) (I2) (I 2) I957 Dam; 6 9 4 Sentence 1958 . . . . . . .. .. .. .. . .. .. .. .. 8 12 6 I959 . . . . . . .. .. .. .. .. .. .. .. .. 6 I6 7 1960 . . . . . . .. .. .. .. .. .. .. .. .. 8 6 5 x961 . . . . . . .. .. .. .. .. .. .. .. .. 13 9 8 ZLZ 'M31 881-61 PUNJAB HIGH COURT Statement showing the cases in which DEA TH sentence was imposed by the Sessions _7udge and which came to the High Court during the period Istjanzzary, 1957 to 31st December, 1962 (I-I-I957 to 31-12-1962) SL8 Year No. of the No. of persons No. of persons No. of persons No. of persons No. of persons Murder sentenced to whose death whose death acquitted by in whose cases Reference death sentence was sentence was the High Court re--trial ordered conﬁrmed by the modiﬁed by the High Court High Court I 2 V 3 4 5 6 7 1957 96 H2 28 35 49 I958 96 I39 45 30 64 I959 74 97 41 26 30 I960 . . . . 83 I18 32 43 43 1951 99 I38 55 31 SI 1 I962 85 109 47 32 30 RAJASTI-IAN HIGH COURT IN 'rm; HIGH COURT or IUDICATURE FOR RAJASTHAN AT JODHPUR Particulars of capital punishment cases for the period 1-1-1957 to 3x-12-1961 Year Opening Institution Disposal Sentence Sentence Balance balance altered conﬁrmed (I) (2) (3) (4) (5) (6) (7) 19 57 . . . . 5 9 I x 8 3 3 1958 . . . . 3 6 8 5 3 I 195 9 . . . . 1 16 14 I I 3 3 1960 . . . . 3 8 I0 7 3 I 1961 . . . . 1 8 8 6 2 1 91.3 275 APPENDIX XXXIII 1ND1A---NUMBER or MURDER cnsns (1953-1962) nnoxrxn TO 1111: Pouca. INDIA Number of murder cases reported to police.

(19S3"1962) Ycar Number of murder cases reported to the police.

1953 . . . 9802 I954 - - - 9755 1955 . . . 9700 1956 . . . 1oo25 1957 . . . 10419 1958 . . . 10661 1959 . . . 10712 1960 . . . 10910 1961 . . . 11188 1962 . . . 11586

1. Based on Crime in India (1953), pages 2 and 10; (1954), pages 3 and I7 ; (1955), pages 2 and Is ; (I956), pages 2 and 21 ; (1957). pages 3 and 25 ; (1958), pages 3 and 19 s (1959), pages 4 and 21 ; (1960), pages 4 and 21 ; (1961), pages 6 and 23 ; and (1962), pages 6, 7 and 24.

27 6 APPENDIX ' XXXIV INDrA--SrAIE'-wrsa FIGURES or HOMICIDE oases (WITH FIGURES OF TWO NOTORIOUSLY CRIMINAL DISTRICTS) (1953 TO 1962).

Index to State Governments and Administrations' Figures.

Andaman and Nicobar Islands . . Based on Sl. No. 30 in the ﬁle. Andhra Pradesh . . . . Based on Sl. No. 203 in the ﬁle. Bihar . . . . . . Based on Sl. No. 66 in the ﬁle. Gujarat . . . . . . Based on Sl. No. 207 in the ﬁle. Himachal Pradesh . . . . Based on Sl. No. 53 in the ﬁle. Kerala . . . . . . Based on Sl. No. 75 in the ﬁle. Madhya Pradesh . _. . . Based on Sl. No. 65 in the ﬁle. Madras . . . . . Based on Sl. No. 206 in the ﬁle. Maharashtra . . . . . Based on Sl. No. 46 in the ﬁle. Manipur . . . . . Based on Sl. No. 204 in the ﬁle. Mysore . . . . . . Based on $1. No. 25 in the ﬁle. Orissa . . . . . . Based on Sl. No. 74 in the ﬁle. Punjab . . . . . . Based on S]. N9. 205 in the ﬁle. Tripura . . . . . . Based on Sl. No. 29 in the ﬁle. U.P. . . . . . . Based on Sl. No. 98 in the ﬁle.

West Bengal . . . . . Based on Sl. No, 63 in the ﬁle.

ANDAMANS Particulars regarding murder cases during last ten years Year No. of No. of No. of No. of No. of No. of No. of Net murders cases cases murder murder cases cases number Remarks in respect of each reported of of cases cases in of in of case. to the murder murder in which murder which cases police. prose- convic-- which sentences aequit- sentence of mur- cuted. ted in sentences of impri- ted or of death der in Sessions of sonment in which commuted which Court death for life sentence the sen- were were reduced tences passed passed by High of death by the by the Court or was Sessions Sessions Supreme executed. Judge. Judge. Court (I) (2) (3) (4) (5) (6) (7) (8) (9) (I0) 1953 . . . 4 3 4 Nil Nil Nil Nil Nil (1) Convicted and sentenced to 6 months' R.I. on 18-6--1953.

(2) Convicted and sentenced to 10 years' R.I. on 31st Dec.

1953- (3)(a) Convicted and sentenced to 5 years' R.I. on 14-11-1953.

(b) Convicted and sentenced to 7 years' R.I. on 14-11-1953.

(4) Accused not known.

LLZ 1955 (2) (3) '1:

(4) (5)

Nil (6) Nil (7) Nil Nil (8) Nil Nil (9) Nil Nil (I0) (I) Convicted and sentenced to 9 years' R.I. and also to pay a ﬁne of Rs. 500/-- pay-

able to heirs of the deceased in default to suffer R.I. for a further period of one year more on 14-9-1954.

(2) Convicted and sentenced to transportation for life on 4-6-1954- (3) One case was not committed to Sessions Court.

(4) Accused not known.

(I) Convicted and sentenced to 5 years' R.I. and one years R.I. under two differ-

ent sections of I.P.C. on 23-6-1955. Sentences to run concurrently.

(2) Case was dropped and ﬁled as the sole accused died on 23-9-1955- (3) Convicted and sentenced to death on 6-12-1956 Pend-

ing in High Court.

(4) Convicted and sentenced to 6 months' R.I. on I8-4-I956.

SLZ 1956 1957 III Nil (5) Convicted and sentenced to 7 years' R.I. and I year's R.I. under two different sec- tions of I.P.C. Sentences to run concurrently.

Nil Nil Nil 2 (I) All the accused acquitted on 22-5-1957- (2) Accused not known.

(3) Convicted and sentenced to death on 8-10-1956. Sen-

tence of death executed on 20-12-57.

(4) Convicted and sentenced to 5 years' R.I on 28-3- 1956.

(5) Convicted and sentenced to death on 13-8-1957. Sen-

tence of death executed on 8-11-1958.

Nil Nil Nil Nil (1) Accused acquitted on 5-8-I958.

(2) (a) Convicted and Sentenced to 10 years' R. I. on 1-5-1958.

(b) Convicted and sentenced to IO years' R. I. on 2-5-I958.

(d) Acquited on 2-5-1958.

(e) Do.

6L8 <1) <2) <3) <4) <5) (6) (7) (8) (9) (mo) (3) One case was not committed to Sessions Court.

1958 . . . 4 4 2 Nil Nil Nil Nil Nil (1)One case was not com- mitted to Sessions Court.

(2) Accused acquitted on 25-7-1959- (3) Convicted and sentenced to 2 years' R. I. on 10-9-1958.

(4) Convicted and sentenced to I year's R. I. and to pay a ﬁne of Rs. zoo in default further 3months' R.I.on 19-5-1959.

[959 . . . 3 Z 2 I Nil Nil Nil Nil (1) Convicted and sentenced to deathon 12-9-1959. Sentence of death reduced to imprison- ment for life by High Court on 25-3-1960.

(2) (a) Convicted and Sentenced to 4 years' R. I. on 9-6-1960.

(b) (1) and (3) Acquittcd on 9-6-I960.

mitted to Sessions Court.

(3) Accused not known.

08?.' 1960 I961 1962 IO 10 Nil Nil Nil 2 Nil Nil 3 2 Nil Nil Nil Nil (1) Convicted and sentenced to I year's R. I. and to pay a ﬁne of Rs. too in default futher R. I. of 3 months on 10-10-1960.

Nil (I)N0t committed to Session Court.

(2) Convicted and sentenced to death on 30-9-1961. Sen-

tence of death reduced to imprisonmentforlife by High Court on 9--I-1963.

(3) Convicted and sentenced to 2 years' R. I. and also to death under three different sections of I.P.C. on 21-3-1963. Sentences set aside by High Court and case directed to be retried.

Nil (1) Convicted and sentenced to death on 18-7-1963. sen-

tence conﬁrmed by High Court on 20-3-1964.

(2) Convicted and sentenced to R. I. for life on 18-3-1964.

(3) Pending in Sessions Court.

(4) Convicted and sentenced to death on 17-8-1963. Pend-

ing in High Court.

I82 (2) (3) (4) (S) (6) (7) (3) (9) (I0) (5) Convicted and Sentenced to 6months' R. I. and 3 months R.I. under two diﬂerent sec-

tions of I.P.C. on 28-10-1963 Sentences to run concur--

rently.

(6) Convicted and sentenced to 4 years' R.I. on 17-4-69.

(7) (1) and (2) convicted and sentenced to 7 years' R. I. each on 29-6-1963.

(8) Convicted and sentenced to death on 15-4-1963. Pending in High Court.

(9) Convicted and sentenced to imprisonment for life on 23-1-63.

(10) Accused persons acquitted on 29-2-1964.

Z88 ANDHRA PRADESH Statistics of cases of murder: for the last 10 years (:'.e., from 1953 10 1962) in Andhra Pradesh State Subiect (I953) (I954) (I955) (I956) (I957) (I958) (I959) (I960) (I961) (I962)

1. Number of murders reported to the police . . . 699 692 665 727 902 855 763 871 842 864

2. No. of cases of murders pro-

secuted . . . . 538 478 490 476 635 583 553 613 625 605

3. Number of cases of murder convicted in Sessions Court 245 209 240 202 263 266 276 326 316 323

4. No. of murder casesin which sentences of death were passed by the Sessions Court . 36 26 35 37 3x 26 49 48 42 30

5. No, of murder casesin which sefftences of imprisonment for life were passed by the Sessions Judge . . 85 75 8o 53 86 112 121 I25 155 I40

6. No. of cases of murders acquitted or in which sen-

tence reduced by High Court or Supreme Court. . I95 157 I54 I52 I69 2o5 I82 205 180 163

7. No. of cases in which sentence of death commuted. to 4 8 6 7 2 13 13 11 1

8. Net number of cases of mur-

der in which the sentence of death was executed. . 2o 3 x 5 12 13 8 20 I6 9 3 $88 ANDHRA PRADESH STATEMENT----2 , _ . - - - ' -' nd Kzmz ml in 3341151165 Ofcases of murders for the last ten years (from 1953 to 1962) m the two notorzous cmnmalD1smcts of Gzmzur a ( Andhra Pradesh.

-------- --\--.___ S l .

N°- Subject.

1955 I956 I957 I954 962 1958 1959 I960 '96' 1 I953 ' _ .K . (}un.Kur. (Jun.

Gun. Kan Gum Kur. Gum Kur_ Gum Kur, Gun_ Kur. Gun. Kur. Gun. Ixur Gun ur 'L ____ *_> ' 2 3 4 5 6 7 8 9 I0 11 12 I3 14 15 I5 '7 18 19 20 ZI 22 I. Number of murders re-

104

ported to the police. . 63 89 53 93 56 89 56 93 90 I17 87 84 74 69 I00 99 75 8 70

2. Number of cases of mur-

68 92 ders prosecuted. . so 4! 32 70 51 77

3. Number of cases of mur-

ers convicted in se-

SS1-onscourt. . _ 24 30 I5 31 28 44 II 24 34 33 27 34 19 40 48 43 42 34 30 44

4. Number of murder cases an wllltich sentences of cat we e as d b the Sessicranspcotexrt. y , -- 2 -- I 4 5 2 -- 5 ' 3 3 5- Number of murder cases in which senten-

ces of imprisonment forlife were passed by the Sessions Judge. . 6 3 2 Kur.

T798

8. Number of cases of mur-

der acquitted or in which sentence re-

duced by High Court or Supreme Court.

Number of cases in whichsentcnce of death commuted.

Net number of cases of murder in which the sentence of death was executed.

_V___7W ._.§______ 18 II 17 I4 I2 17 21 I3 22 20 IO 26 15 15 II 983 BIHAR STATE Statement regarding capital punishment in murder cases Bihar State District or State Year Number Number Number Number Number Number, No. of Net No. of of murders of cases of cases of murder of murder of cases cases cases of Remarks reported of murder of murder cases in cases in of murder in which munlerin to the prosecuted convicted which sentences of acquitted sentence wh-'ch the police in sentences imprison- or in which of death sentence Sessions of death ment for sentence commuted of death Court were life were reduced by was passed passed High executed. by the by the Court or Sessions Sessions Supreme Court Judge. Court 1 2 3 4 5 6 7 8 9 I0 11 RanchiDistrict . 1954 . . 96 54 23 2 17 28 .. .. Figures in ooltunn (8) also indicate some 1955 105 69 21 16 42 2 previous pending ca- ses but disp0sed_ dur-

1956 I01 46 18 9 26 .. .. ing year mentioned in column No. (2).

1957 135 71 31 23 34 I It also applies to some other columns 1958 108 58 28 21 28 . as well.

1959 94 59 23 IS 32 - --

1960 117 83 24 18 48 .. ..

1961 114 88 34 17 41 . ..

1962 121 75 23 I5 31 ..

1953 96 59 4 4 I - -

988

Santhal Parganas District.

Bihar State 1954 I955 I956 1957 1958 I959 1960 1961 1962 1963 I954 1955 I956 I957 I958 1959 1960 1961 1962 1963 79 91 73 77 106 68 96 87 92 60 756 754 801 842 891 810 359 838 863 826 33 43 33 3o 48 32 47 46 53 36 355 365 340 411 457 413 486 497 454 379 26 18 21 14 26 IS 28 25 22 149 142 130 147 201 I62 206 88 47 51 35 24 25 21 32 29 3I 30 27 I2 13 15 IO 13 12 II 61 63 62 84 92 95 117 07 98 33 I3 20 to 13 2I I4 15 19 1o :42 166 I34 152 I45 I50 I74 I53 152 56 13 II N A -b N RA L» \l U) 0\ L83 GUJARAT STATE Statement showing number of murders in the Gujarat State during last IO years i.e. from 1954 to 1963 S1. --w'%Wwim' ( mm-

N°- Hmds I954 I955 1956 1957 I958 1959 1960 I961 1962 1963 Total I 2 3 4 5 6 7 8 9 IO II 12 I3 (I) Number of murders reported to the Police , _

- 551 631 62! 807 749 751 782 775 781 690 7:33 (2) Number of cases of murders P'°S°°"'°d - - - 407 433 438 565 546 582 622 614 ms 522 5353 (3) Number of cases of murder convictedin Sessions Court 164 203 204 400 273 234 23, 282 I32 251 (4) Number of murder cases in 5 which Sentences of death were passed by the Sessions Court . 4 3 2 4 5 8 I8 12 7 3 66 (5) Number of murder cases in which Sentences of imprison- rnent forlife were passed by Sessions Judge . . . 36 so 47 73 79 85 IOI I01 91 50 (6) Number of cases of murder acquitted or in which sen-

tence reduced by High Court or Supreme Court . . 44 68 70 I00 99 I00 I30 122 155 (7) Number of cases in which sentence of death commuted 29 3 3 1 1 3 2 6 (8) Net number of cases of murder in which the sen-

tence of death was executed. 2 I 2 x . . 3 4 1 713 7° 959 5 54 883 '1Y\9'I ZZI--0Z GUJARAT STATE Szacmcnt slzozuing the infornmzion Hf ﬁgures of murders in Baroda 1)iszrz'cz (Gujarat State) from years 19 54 to I 963- 7;S\Il(.)v C HVe2:dsﬁk _ !7#"_:o54W 1o55 771.9?' 1957 1958 1959 1960 1961 I962 1963 Total 1 2 3 4 5 6 7 8 9 1o 11 12 13

-1. No. of murders rzer)or'ted«t0"t11'e police { 43 55 44 71 85 74 96 85 76 7,4 703

2. N0. of cases of murder prosecuted ' , 28 37 34 52 61 54 77 67 66 63 539

3. No. of cases of murder convicted in Sessions Court . . . . 5 18 17 30 34 35 46 35 38 20 278

4. No. of murder cases in which sen- tences of death were passed by the Sessions Court . . . . . . . . . . . I 1 1 5 3 4 1 16

5. Numoer of murder cases in which sen- tences of imprisonment forlife were passed by the Sessions Judge . . .. 1 2 6 9 13 22 18 12 1o 93

6. Number of cases of murder acquitted or in which sentence reduced by High Court ot Supreme Court . , 16 15 14 18 19 15 28 34 22 21 202

7. Number of cases in which sentence of death commuted . . . . I .. . . .. I 2 . . I I 1 7

8. Net number of cases of murder in which the sentence of death was executed . . . . . . . . . 1 I . . 1 1 1 5 TOTAL : . . 93 126 111 I78 211 195 274 244 220 191 1843 688 I.

3. Number of murders Police ed GUJARAT STATE Statelmmt showing the izzfarmatiuu 0 f ﬁgures of nmrders in Surat 1)z'sm'cz Gujarat State fromycars 1954 Z17 1963.

Heads I 9 54 reported to the . . . . 58 Number of cases of murder prosecut--

. - 49 Number of cases of murder convicted in Sessions Court . . . 20 Number of murder cases in which sen-

tences of death were passed by the Sessions Court . . .

Number of murder cases in which sen-

ICIICCS passed by the Sessions Judge of for life I 4 imprisonment Number of cases of murder acquitted orinwhichsentence reduced by High Court or Supreme Court , Number of cases in which sentence of death commuted . .

. 29 Net number of cases of murder in which the sentence ofdeath was exe-

cutcd 1955 53 40 IO 30 1956 60 42 I5 27 1957 I17 93 46 IO 47 I958 93 75 36 1959 86 64 39 I2 25 I960 79 32 IO 37 1961 I0 74 53 38 I2 25 1962 II I02 82 37 44 1963 I2 87 69 13 Total 13 2509 N \O U:

\l '4) TOTAL : . . 160 I48 313 252 226 227 212 270 :91 2136 068 HIMACHAL PRADESH Sfatezrzcnt Showing the Figures of murder cases in Himachal Pradcsh for the last IO yeazs No. of No. of murders cases of Year reported of murder the police. prosecuted.

I954 10 8 1955 I5 10 I956 9 8 1957 I7 13 1958 13 II 1959 I8 I4 1960 16 to I96! 20 I5 1962 2-0 15 1963 I6 IO N015 I 2 cases reported in 1963 are pending investigat'on and 6 pending trial.

4 cases reported in 1962 are pending trial.

No. of No. wf No. of No. of Net No. of cases murder cases of cases in cases of convicted casesin murder which murder in in Sessions wh'ch- acquitted or sentence of which the Court sentences of in which death sentence of imprisonment sentence commuted. death was for life were reduced by executed. passed by the H'gh Court Sessions or Supreme Judge. Court.

6 6 I 7 7 I 4 4 2 6 6 8 8 4 4 4 2 I I 7 6 1 5 5 I I63 KERALA Statement of murder casex--Capz'tal punishment for the year from 1954 to 1963 for Kerala N0- Heads 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 I 2 (I) No. of_murders reported to the Police . _ (2) No. of cases of murder pro- secuted , _ ( )No. of cases of murder con-

3 . . .

victed 1I1 Sessions Court (4) No_. of murder cases in \vh1Ch sentences of death were Passed by the Sessions Court . , _ (5) No. Of murder cases in which Semfﬁnces of imprison- ment for_ life were passed by the Sesslons Court _

6) No. _°f cases of murder acqultted or in which sen-

tence reduced by High Cour or Supreme Court . .

(7) No. of cases in which sen-

tence of death commuted (8) No. of cases of murder in which the sentence of death was executed . .

172 160 106

II 44 35 II 177 156 103 I0 48 52 I53 I39 82 I2 45 40 6 220 197 III I5 50 53 Nil 264 235 151 22 70 75 277 252 164 23 79 62 IO 235 208 I33 18 69 59 16 IO 253 236 I44 24 78 71 II 214 199 I22 28 55 53 I2 12 199 I77 I23 30 57 40 Is 868 MADHYA PRADESH No. of cases Year No. of murder No. of No. of murders No. of murders No. of murders cases reported murders convicted in in which death in which life of murders to the Police. prosecuted Sessions Court sentences were imprisonment acquitted or passed. were passed. in which sen- tence reduced by High Court or Supreme Court.

I 2 3 4 S 5 7 I956 . 1130 868 255 49 86 7 1957 1166 1037 253 57 so 6 I958 . 1203 1090 245 44 97 6 I959 - . 1326 1062 299 61 96 15 1950 . 1396 1091 328 43 116 9 196I . I378 I063 320 30 102 4 1962 1440 1051 304 18 142 6 1963 1330 1088 261 16 131 5 No. of cases in which sentences of death were commuted Net No. of cases of murders in whcih sen-

tence of death was executed.

€63 MADHYA! PRADESH JHABUA Statement slmwing the ﬁgures of murder: in the District of fhabua (Madhya Pradesh) Period from 1954 to 1964 ending jzmc, 1964 Year No. of No. of No. of No. of No. of No. of No. of No. of Remarks murder cases of cases of murder murder cases of cases in cases of reported to murder murder cases in cases in murder which murder the Police prosecuted convicted in which sen-- which sen-- acquitted or sentence in which Sessions tences of tences of in which of death the sen- Court death were imprison-- sentence commuted. tenee of passed by ment of reduced by death was the Sessions life were High Court executed. Court. passed by or Supreme the Sessions Court Judge I 2 3 4 5 6 7 8 9 I0 1954 79 56 22 I 12 4 I .. Rest of the cases were either ac-

quitted by the Sessions Court or were pending at the end of the year.

1955 . . . 77 54 21 .. 8 3 Do.

I956 . . . 94 8o 35 2 23 3 1 Do.

1957 . . . 109 50 22 *5 9 9 Do.

1958 . . . 71 53 15 5 2 Do.

1959 . . . 101 71 5 53 21 2 .. .. Do.

$63 jnABuA--conzd.

_'§.r.zx,u/u5.'zt 5/zazu:/zg the figures of murders in the District of fhabua (/Wadhya Pradexh) pciord from 1954 I0 1964 ending _71mc, i964--(ConLd.) 1960 1961 1962 I963 I964 (Upio 'the chxi J Line, 1964).

' : Out of the 5 Cases in which sentences of death were passed (in 1957):

4 5 6 7 2% 9 10 76 67 30 . . 20 D0.

. 99 65 29 18 . . Do A 138 67 40 2.1 :2 D0 . 103 97 66 43 15 Do 59 41 30 20 . . Do.

oi C63 (:1) (10 \ (C;

3 cases were acquitted by High Court; the accused of one case died in imprisonment; there is no record avaiiable with the police as to whether the Capital Punishment was Carried out in vhe remaining one case MADHYA PRADESH Statement shfiwing the ﬁgurex of murders in the Dist;-ict of BASTAR (Mad/zya Pradcrlz) for file period fr0m I954 10 I954 ending fune 1064 No. of No. of No. of No. of No. of No. of No. of No. of Remarks. Year murders cases of cases of murder murder cases of cases in of cases reported murder murder cases in cases in murder which of murder to the prosecuted _onvicted which wh!ch acquitted sentence in which Police in Sess- sentences sentences or in which of death the senten- sions Court. of death of sentence commuted. cc of death were [imp1'ison- reduced by Was passed by ment for High Court executed. the life were or Supreme Sessions passed by Court.

Court. Sessions Judge.

1 2 3 4 5 6 7 8 9 1o ._\, 1954 . . . 78 56 37 1 17 .. .. I 'W I955 . . . 52 47 33 3 12 I 3 --

1956 . . . 83 63 49 1 22 1 I ..

I957 . . o 65 67 47 .. I3 5 .. ..

1958 o o 0 86 35 00 I3 3 .. no 1959 . . . I15 84 45 .. 17 5 .. ..

I960 - . o 91 97 48 . . 1 1 2 . . ..

1961 . . . 105 88 58 3 16 4 .. 3 1962 . . - 97 32 27 I ' 15 5 . . ..

1963 . . . 72 58 31 .. 11 .. .. ..

C C', M' -- C v _~ ~__ --%'"-*1' , death were the Sessions Court No. of murder cases in which sentences of im-

prisonment for lifewere passed by the Sessions sentence executed MADRAS STATE Statement showing particulars regarding cases of Murderx in Madras State 1958 1959 1960 I954 I955 1956 I957 No. of murders reported to the Police No. of cases of murder prosecuted No. of cases of murder convicted in 589 734 734 721 735 757 710 734 520 631 545 554 604 617 588 626 Sessions

- 290 334 329 336 355 352 370 435 No. of murder cases in sentences passed by of . 73 I04 II7 I10 I15 I19 I07 130 o 1X2 I34 I15 I44 I50 I43 I45 174 No. of Cases of murder acquitted or sentences High Court or reme Court No. of cases in sentences of commuted Net number of cases of murder in which of death was in which reduced by Sup-

. I88 184 189 166 176 162 181 196 which death I6 30 24 34 29 36 37 32 the 44 53 55 50 A 3155;"

II 677 578 373 106 I63 172 34 33 956;;

I2 665 560 287 90 98 I02 29 L63 to H eads 1954 1955 MADRAS STATE SALEM DISTRICT 1956 1957 2 No. of murders reported to the Police , No. of cases of murder prosecuted .

No. of clues of murder convicted in Sessions Court N) . of murder cases in which sentences of death were passed by the Sessions Court No. of murder cases in which sentences 0fim--

prisonment for life were passed by the Sessions Judge No. of cases of murder acquitted or in which sentence reduced by the High Court or SLipre':n~.' Court I\'~'.u. of cases in sentences of commuted which death Net number of cases of murder in which the sentence of death was executed 98 88 59 I7 27 22 I4 104 35 44 16 I8 33 x3 I16 80 56 24 I3 21 I4 6 III 34 62 I4 15 20 Capital Pum'shment--ParticuIar: regarding caxes of murder for ten years 1958 III 81 48 24 I3 20 Is for S/11.I:'M DIS'./'RICY (_/Madras).

1959 50 28 23 17 1960 22

I0 1961 10 I15 16 1962 II 34 53 1963 I2 95 53 868 19 No. of murders reported to the Pollce No. of cases of murder prosecuted No. of cases of murder convicted in Sessions Court No. of murder cases in which sentences of death passed by the Sessions Court _ No. of murder cases in which sentences of im-

prisonment for life were passed by the Sessions Judge No.of cases of murder acquitted or in which sentencercduced by the High Court or Sup-

reme Court _ No.ofcasesin which sen-

tence of death com-

muted . . .

Net number of cases of murder in which the sentence Of death was executed MADRAS STATE Coxmanromz DISTRICT 1954 I22 73 46 I4 27 33 I0 1955 117 I05 68 26 35 32 13 II 1956 133 95 5! 26 I8 25 I3 1957 I77 75 43 I8 25 18 I4 1958 I20 99 62 23 23 25 Capital Punishment----Particular: regarding cases of murder for ten years.

1959 1960 118 1 I I 98 91 51 62 13 17 13 20 22 28 8 1 12 14 14 I961 108 87 63 16 18 32 I962 I22 I02 65 19 19 2I 1953 99 60 30 I0 662 MAHARASHTRA Statement showing ﬁgures of murders for the State of Maharashtra for the last ten year:

No.' of No. of No. of No. cf No. of No. of N0. of A murders cases cases murder murder cases of cases Year reported of of murder cases in cases in murder in which to the murder convicted which which acquitted sentence of Police. prosecuted. in sentences sentences or in death was Sessions of death of which commuted. Court. were imprison- sentence passed by mcnt forlife reduced by the were High Sessions passed by Court or Court. the Supreme Sessions Court.

judge.

3 2 3 4 5 6 7 i'--i W 8A' C 1954 . . . . I035 672 289 29 I07 203 I6 1955 . . . . I141 757 310 40 115 224 :7 1955 . . . . I168 789 310 29 I20 277 24 1957 . . . . . I215 824 357 17 140 250 20 1958 . . . 1227 87! 390 31 I76 267 II 1959 . . I177 845 404 25 I86 242 2I I960 . . . I199 798 466 35 208 234 20 I951 . . I103 825 407 28 214 233 23 1962 I164 861 487 31 247 202 17 I963 I054 689 212 13 128 m7 12 cases of murder in which sentence of death was executed.

as 008 0OO\-l>-Ii IO * From 1954 to 3o-4-I960, the figures are for the former Bombay State.

MAHARASHTRA Statement showing _/lgures of murder: for two notoriously criminal Districts No. of cases of No. of murder cases No. of murder cases No. of cases of Year No. of murder re- No. of cases of ported to the Police. murder prosecuted. murder convicted in which sentences in which sentences murder acquitted in Sessions Court. of death were of imprisonment or in which sen-

passed try the Ses- for life were tence reduced by sions Court. passed by the High Court or Sessions Iudge. Supreme Court . I 2 3 4 5 6 7 Thana District x954 . . . . 80 55 II . . 2 43 I955 . . . . I22 81 26 2 3 53 1955 , , , . 101 7: 21 1 4 69 I957 . . . . I09 90 3° 1 1° 50 I958 . I02--I 87 35 3 9 50 I959 . . . . 93 75 33 ' 17 42 I960 . . . . u 93 45 2 18 44 1961 . . . . 33 77 39 3 2° 33 1962 _ . . . 84 65 46 6 17 I7 12 I963 . . . . S9 49 1° 1 3 I08 5 6 7 Sholapur District 1954 67 47 I3 6 22 I955 62 36 IO 6 17 I956 75 45 I7 I 12 15 1957 . X04 65 27 . . 16 25 I953 82 64 25 2 17 23 I959 68 45 21 I I2 15 195° 34 67 27 I7 21 I96! 80 59 21 3 6 20 1962 86 67 26 2 18 28 I963 70 45 12 7 2 E08 $1.

No. MANIPU R Murder Case: reported in the last 10 years Year No. of No. of No; or No. of No. of No. of N0. of Net num- murders cases of cases 01 murder murder cases of casesin her of reported murders murders cases in cases in murder which cases of to the prosecuted convicted in which Sen-- which scn~ acquitted Orin sentence murder in Police Sessions tences of t€nC£S of which Sentenccs of death which the Court death were imprison- reduced by commuted. sentence passed ment for High Court was by the life were or Supreme executed. Sessions passed Court Court by the Sessions judge 2 3 4 5 6 7 8 9 I0 1953 10 7 1 6 I954 8 7 2 5 I955 5' 2 . 2 1956 12 IO » 3 2 5 for other Oﬂ"ences*.

for murder.

Remarks (18 months R.I. & :1 fine of Rs.

roo/- in default 3 months' R.I.).

('1'wcyear$' R.I. in each case).

*[(i)-I. 7 years' RI

(ii)-1. a fine Ff Rs. 6oo/-- in default 6 months' R.I.

(iii)-I. a ﬁne of Rs. 45o/- in default6 months' R.I.] €08

6.' ~_J I0.

I for other offences. ' 9 2 3 4 5 10 II 1957 19 11 2 for murder *(Ten years' R.I.).

I for other OtTences* 1958 9 7 4 1959 I4 12 I t(5 years' R.I.).

for other oﬂ"enccs.* 3 for murder 1960 31 I4 3 I *[(i)---I-10 years' for other R.I. offences.' (ii)---I-8 years' ._ R.I. 4 (in)------I-5 years' for murder. .I.] 1961 25 I2 4 *[(i) I -3 years' for other R.I. oﬂ'ences.* (ii) 2---~2 years _ R.I. each.

3 (iiz) I----I years' for murder R.I. I962 17 I *(5 years' R.I.).

T708 'M91 zzI--Iz MYSORE ATE S'l'A'I'EMEN'1' No. 1 Details of Murder cases for laxt ten years S1.

N0- Particulars I953 I954 1955 1956 I957 1958 x959 I960 1961 1962 Remarks 1 2 3 4 5 6 7 8 9 1o 11 12 13 I. No. of murders reported to the Police . . . 652 658 694 574 645 633 642 744 7o7 724 No of murder cases pro-

secuted . . . . 455 452 438 399 486 525 485 496 548 439 N

3. No. of murder cases con-

victed in Sessions Court . 17o 180 197 159 225 203 22; 199 I97 232

4. No. of murder cases in which sentences of death were passed by the Ses-

sions Court . . . 3 7 8 5 II 14 8 12 8 3

5. No. of murder cases in which sentences of im-

prisonment for life were passed by the Sessions judge . . . . 42 79 66 71 77 84 91 74 82 94

6. No_. of murder cases Ac-

quitted . . . . 239 231 206 207 220 247 237 276 295 240 . (a) No. of murder cases in which sentence was re-

dued by High Court . 2 5 6 3 6 IO 7 7 5 4 908 ,7.

8. (l~) No. of murder cases in which sentence was re-

duced by Supreme Court . .

No. of cases in which sen-

tences of death were com-

muted . .

Net No. of murder cases in which the sentences of death were executed TOTAL :

3 4 5 6 7 3 9 10 II 12 I3 2 8 3 6 2 I 5 3 5 1 1 4 I 2 I 3 3 Two notoriously Cri-

minal Districts---

(2') Bclgaum;

(ii) Bijapur.

1516 I613 908 I527 I422 I678 I595 1815 I843 MYSORE STATE STATEMENT No. 2.

Details of murder cases for last ten years in respect of Belgaum and Bijapur District.

Net No. of murder cases in which the sentence of death was executed . . .

S1. Belgaum District No. Particular s -------- -~ 1953 I954 I955 1956 1957 I953 1959 1960 I961 1962

1. No. of murders reported to the Police 141 I28 I46 122 I19 114 I28 I15 H2 134

2. No. of murder cases prosecuted 83 72 111 90 91 84 95 9o 88 I02

3. No. of murder cases Convicted in Sessions Court . . . . 30 31 5o 40 57 44 42 45 32 49

4. No. of murder cases in which sentences of death were passed by the Sessions Court I 4 3 I 2 5 3 5 1 3

5. The murder cases in which sentences of impri- sonment forlife were passed Ly the Sessions Judge . . . . . I2 23 26 28 29 35 33 2o 17 25

6. No. of murder cases Acquitted 3o 25 36 28 17 25 41 38 43 36

(a) No. of murder easesin which sentence was reduced by High Court . 2 3 2 2 2

(b) No. of murder cases in which sentence was reduced by Supreme Court .

7. No. of cases in which sentences of death com- muted . . I 1 . 2 I

8. L08 MYSORE STATE STATEMENT No. 2.

Detail: of murders cases for last ten years in respect of Belgaum and Bzjapur District

81. Bijapur District No. Particulars --_ I953 1954 1955 I956 1957 1953 1959 I960 1961 I962

1. No. of murders reportd to the Police . I05 I02 74 71 81 85 71 84 103 82

2. No. of murder cases prosecuted . . . 78 52 55 48 6o 62 58 57 74 61

3. No. of murder cases convicted in Sessions Court . . . . . . . 27 21 23 21 28 29 24 I8 18 26

4. No. of murder cases in which sentences of death were passed by the Sessions Court . .. .. 3 .. 2 .. .. .. .. 2

5. The murder cases in which sentences of impri- sonment forlife were passed by the Sessions Judge . . . . . . . 3 8 7 9 ro 6 7 6 7 I0

6. No. of murder cases Acquitted . . . 51 31 32 27 32 33 34 39 56 35

(a) No. of murder cases in which sentence was reduced by High Court . . .. I I . . I . . I I

(b) No. of murder casesin which sentence was reduced by Supreme Court

7. No. of cases in which sentences of death com- muted . . .

8. Net No. of murder cases in which the sentence of death was executed . . . . . . . . . 2 . . I . . I 8C8 No. of No. of Year murders cases reported of murder to Police prosecuted 1 W 2 5 5 3 I 954 273 '- 30 I 955 . 275 98 1956 279 139 1 957 , , 262 191 I958 . . 269 206 1 959 . . 3 13 235 I960 . . . 346 259 I961 , , , 267 207 I 962 . . . 325 269 . 333 253 I963 ment.

ORISSA STATE FIGURES or MURDER FROM 1954 TO 1963.

No. of cases of murders convicted in Sessions Court 129 148 92 160 176 163 175 NOTE ----Koraput and Mayurbhoni are the two notoriously crimir No. of No. of murders murder cases in cases in which which sentences of sentences of death i mpri Son ment were passed for life by Sessio. IS were passed Court by the Sessions Judge 5 6 6 I00 3 147 5 125 .. 110 2 145 I 91 1 I 50 176 9 154 I 174 a1 distr (ts of the Otissa State according to the State Govern~ No. of No. of cases of cases in murder which acquitted or ser,ttr.ce of in which death senteme (0n:rr.ut(d reduced by the High Court or Supreme Court 7 8 25 5 31 34 3 32 30 I I0 30 I 47 35 9 29 Net No. of murder casesin uh (I1 the sentence of death was executed 608 a 3 PUNJAB STATE No. of No. of No. of No.of No. of No. of No. of Net number Year murders cases of cases of murder murder cases of cases in of cases of reported murder murder cases in cases in murder which murder to the prosecuted convicted in which which acquitted or sentence of in which the Police Sessions sentences sentences in which death sentence of Court of death of imprison- sentence commuted death was were ment of reduced by executed passed by life were the High the Sessions passed by Court or Court the Sessions Sureme Judge Court W_ I 2 3 4 5 6 7 8 9 1954 542 495 269 79 124 157 10 10 1955 614 496 282 85 I25 I46 6 11 1955 590 474 223 57 99 175 14 15 1957 604 483 236 79 I16 176 15 11 1958 598 497 251 73 127 162 29 12 I959 596 487 242 67 I53 151 15 12 1960 543 470 248 69 140 I32 21 20 1961 523 450 273 79 163 150 17 21 1962 571 480 272 57 174 143 16 1 1 I963 533 430 I91 56 I38 73 II 4 5814 4762 2487 711 I359 I465 154 128 018 1954 1955 1956 1957 1958 1959 1960 1961 1962 1963 I954 I955 I956 1957 1958 1959 1960 I961 I962 I963 2 3 4 5 6 7 8 9 FEROZEPUR DISTRICT 90 64 34 12 21 29 1 H 116 88 51 22 22 37 .. 3 I09 89 36 23 7 54 7 7 94 83 45 I4 25 40 I 2 94 73 34 I3 I6 40 b 4 91 84 36 13 16 48 .. 4 33 71 33 I4 19 33 4 9 98 82 44 15 26 38 IO 86 74 44 8 34 39 3 79 6% 23 3 2o 4 940 771 385 137 206 362 21 42 BHATINDA DISTRICT 53 54 28 6 22 11 3 3 40 36 17 3 I4 8 2 1 36 32 2o 6 14 8 3 3 46 42 I4 4 I0 5 2 2 . 41 39 24 8 16 8 4 4 59 52 24 4 29 I0 I 3 61 58 33 I2 21 11 7 5 45 42 23 4 19 9 2 2 SI 47 23 5 18 7 3 2 83 75 32 IS 17 6 3 2 530 487 238 67 I80 83 30 27 H8 TRIPURA STATE .\'tatement of Capital Cases from I9 54 to 196 3.

_ _._.______ _ _____ ____ 5 __ ______* ,,_ ____ ___ No. of No. of No. of No. of No. of No. of No. of No. of Net No. No. of murders cases of cases of murder murder cases of cases in cases in of cases of cases Year reported murder murder cases in cases in murder which which murder pending to the prose-- convicted which which acqit- sentence sentence in which trial in Police. cuted. in sentences sentences ted. reduced of death the Sessions Sessions of death of by High com- sentence Court. Court. were imprison- Court or muted. of passed ment Supreme death by the for life Court. was Sessions were executed.

Court. passed by the Sessions Judge.

1 2 3 4 5 6 (0) 6 (17) 7 3 9 I0 e -- > -------------- . -- _--.:£-.{__;_.- Q _,> ,. __&___j%___,___,,_(_<{__._,/,,___}',,, _/__,, , , ,, ,_, 5), * X 1954 . . . . 8 5 r .. .. 4 1 . . M 1955 . . . . 13 II 7 I 4 2 1956 . . . . I0 8 3 . 5 r 1957 . . . . 2o 7 3 1 4 r 1958 . . . . I 5 I2 7 3 5 1 1959 . . . . 25 11 7 I 4 2 I960 . 30 I7 8 3 9 1961 . . . . 22 12 5 1 7 I 1962 . . . . 31 I2 4 I 8 2 I963 . . . . 21 I 5 5 2 8 2 59 Number of murders re-

ported to the Police Number of cases of mur-

der prosecuted .

Number of cases of mur-

der convicted in Sessions Court Number of murder cases in which the sentences of death were passed by the Sessions Court .

Number of murder cases in which sentences of im-

prisonment for life were passed by the Sessions Judge . . .

Number of cases of mur-

der acquitted or in which sentence reduced by the High Court or Supreme Court . . .

Number of cases in which sentence of death com-

muted Net number of cases of murder in which the sen-

tence of death was exe-

cuted . .

I39 180 237 29 24 U.P. STATE Figures of murder etc. for the State of U.P. for the years 1954 to 1963 169 170 233 31 46 1956 1477 1046 415 154 222 237 36 41 1957 1362 I002 393 138 210 254 28 54 1958 1554 III2 435 158 233 261 46 41 1959 1613 I194 438 167 247 254 44 47 165 262 346 52 1961 1962 2135 2245 I333 1442 502 590 172 193 323 355 359 355 62 41 44 35 2164 I385 420 143 SI?

to Number of murders re-

ported to the Police Number of Cases of mur-

dcr prosecuted Number of cases of mur-

der convicted in Sessions Court Number of murder cases in which the sentences of death were passed by the Sessions Court .

Number of murder cases in which sentences of im-

prisonment for life were passed by the Sessions Judge Number of cases of mur-

der acquitted or in which sentence reduced by the High Court or Supreme Court . . .

Number of cases in which sentence of death com-

muted . .

Net number of cases of murder in which the sen-

tence or death was exe-

cuted 1954 55 28 14 1955 35 19 1956 64 38 17 1957 45 39 16 1958 56 32 1959 43 31 13 1960 37 43 22 13 Pigu1'cs of Murder etc. for the two notoriously criminal districts (in respect of Unnao) for years 1954 to 1963 18 II 13 1718 Figures of Murder etc. for the two notoriously criminal district (in respect of District Hardoi) N Number of murders re-

ported to the Police Number of cases of mur-

der prosecuted Number of cases of mur-

der convicted in Sessions Court . .

Number of murder cases in which the sentences of death were passed by the Sessions Court . .

Number of murder cases in which sentences of im-

prisonment for life were passed by the Sessions Judgc . . . .

Number of cases of mur-

der acquitted or in which sentence reduced by the High Court or Supreme Court . . . .

Number of cases in which sentence of death com-

muted . . . .

Net number of cases of murder in which the sen-

tence of death was exe-

cuted . .

I954 I955 1956 56 62 52 56 44 42 18 32 15 3 3 2 5 8 6 2 4 I 3 2 1957 45 39 26 1958 52 44 32 II 1959 42 34 25 10 for the years 1954 to 1963 1960 1961 42 50 34 23 16 22 3 5 13 9 I I 2 4 I 1 1962 1963 68 46 45 34 I4 5 1 1 IO 4 2 918 WEST BENGAL Statement of murder case: of West Eegalfor the years from 1954 to 1963 Year No. of murder No. of cases of No. of cases of No. of murder No. of murder No. of cases of No. of cases in Net number of cases reported murder p'r0se-- murder convic-- cases in which cases in which murder acqu- which sen- cases of mur- to the Police. cuted. ted in Ses- sentences of sentences of itted or tence of ders in which sions Court. death were imprisonment in which sen- death was sentence of passed by for life were tcnees rc-- commuted dcaih the Sessions passed by duced by the executed. Court the Sessions High Court Judge or Supreme Court I 2 3 4 S 6 7 3 9 1954 410 I59 47 2 8 26 I I 1955 447 I38 46 3 24 29 1 1 1956 464 I76 68 9 I6 28 7 2 I957 496 I99 79 7 28 36 3 4 I958 . . . 454 235 96 5 35 46 4 I 1959 . . . 450 220 82 6 35 35 2 I I960 461 232 III 9 47 33 6 2 I961 . . 452 247 102 9 43 32 I I962 473 233 97 I0 41 26 3 I963 470 231 83 7 46 14 2 918 The statement for two notoriously criminal Districts of West Bengal in respect of murder cases for the years 1954 to 1963 Year Two no to ruous No. of No. fo No. of No. of No. of No. of No. of Net number criminal districts murder cases cases of murder murder cases of cases in of cases cases of murder cases cases murder which of murder reported to murder pr0- convicted in in which in which acquitted or sentence in which the Police. Secuted Sessions sentences of sentences of in which of death Sentence of Court death were imprison- sentence commuted death was passed by the ment for reduced by executed. Sessions life were the High Court passed by Court the Session or Supreme Judge Court I 2 3 4 5 6 7 8 9 I0 1954 . . 24-Parganas . , 76 30 11 .. I 33 Burdwan . . 35 II 1 1 .. I0 1 K' 1955 , . 24-Parganas , .- 92 I6 4 . . 3 Burdwan . . 36 6 3 ,_ 3 3 1956 . _ 24-Parganas _ . 88 32 8 _, 1 ,, Burdwan . . 37 7 1 I 1 5 1 I957 . . 24--Parganas _ _ 9o 23 to 4 Burdwan . , 34 15 3 I 3 12 1 I958 . . 24-Parganas , , 96 4o 16 3 .

Burdwan . . 4: 25 1 _ , 1 24 1959 1960 1961 I962 1963 24-Parganas Burdwan 24-Parganas Burdwan 24-Parganas Burdwan 24-Parganas Burdwan 24-Parganas Burdwan 93 38 86 38 77 51 96 41 90 50 7 9 IO 42 I6 I 4 I 19 1 I 18 .. . .

4o 18 I 5 1 ..

18 2 1 2 16 1 41 27 4 I2 1 . . . .

22 4 I 4 I7 . . . .

44 I8 2(Pending) I . .

11 3 2 3 7 I 54 27 2(Pending) I3 . ..

8-18 319 APPENDIX XXXV INDIA----TABLE' SHOWING NOTICEABLE INCREASE IN THE CRIME or MURDER IN CERTAIN STATES AND CITIES.

(1958-1962) Increase in States Year Increase in States 1958 Orissa, Jammu and Kashmir, Kerala, U.fP., Madras and Bihar.

Union Territories of Himachal Pradesh, Manipur, Tripura and N-aga Hills etc. 1959 Madhya Pradesh, U. P., Rajasthan, Orissa and West Bengal.

1960 Assam, Aadhra Pradcsh, Madhya Pradcsh, Orissa, Maharash- tra and Manipur.

1961 U. P., Bihar, Mysore, Kerala, Madras and Nagaland.

1962 U. P., Rajasthan, Maha.rashtrt.a, Madhya Pradesh, Orissa, Tripura and And-amans and Nizobar Islands.

1ND1A--TABLE SHOWING NOTICEABLE INCREASE IN THE CRIME or MURDERS IN CERTAIN CITIES'.

Increase in particular cities Year Increase in Cities 1958 Bangalore and Delhi.

1959 Bombay.

I963 Cxlcutta and Bombay.

I961 Kanpur and Hyderabad.

I962 Bangalore, Ahmedabad a d Madras.

I. Based on Crime, in Intiia (1958), page 3 ; (1959), page 4 ; (1960), pagg 4 ; (1961; page 6 at1d(I962), page 6.

IND1A--GRAPH OF MURDER CASES (Cases reported to the Police)' 320 APPENDIX XXXVI (1953 TO 1962) 11600 5 I ' ' 11.:

11500 f 3 J E ' 5- » \ . , ' j_--_.

11400 ' 1 ' ' ' § f 1x300 l § § __ F_ i 5*-

IIZOO f } i ;--_>~_N__ IIIOO 1 Q 3 E E E Z } I I j , ' 1 u 5 = 0 ' *-"' IIOOO 3 E | g 3 E x0900 ' \ 9 ; i } F-

1o8oo § 5 [ f E _- ~ [-F-

» __ __ ' ' __________
moo J ; I  : 1 u 4
3 1 ' , _..__._
10600 J I i E 3 t 5
10500 El    ! n'  '
moo x s 1 2 ; % i 5
13300 J J g j E ' J j
10200 j E K ? } J } i
1 '. ' * 2 I I
10100 ' \ 4 1 \ i \ ;
10000 I ] 5 E y ] j
I L ' L - ig"
990° 1 X 1 > \ 3

::'--_:}'---j T' l:'i'--" ' ' n } 9800 1 1 V i J R

------------. :--j ------_. ' \ 970° 2 1 ? 'r 5 = w % ' ; 0 % { ! ' r ' ' \ [ ' A 1953 E 1954 # 1955 I956 \ 1957 1 I958 1959 J 1960 i 196! 2 I962 4 ~ ' ~ i 2 5 } M 1

1. Based on Crime in India (1953), (1954) and subsequent years.

'fl 1' '-.'i*:'§"'ZZ \ APPENDIX XXXVII I88 INDIA---DETAII.,ED ANALYSIS OF MURDERS IN INDIA (195I--I96I) (1') Causes of Murders;

(ii) Means employed to commit murder. MURDERS IN INDIA IN 1951 Detailed Analysis of Causes of Murders in India W V 7 Causes of Murders S.No. State Murders Deliberate Murders Murders Murders Murders Murders Miscelrt for gain murders committed for pur- of public in land in ncous in revenge during poses of servants or disputes communal party terrorisation persons distur- feuds & assisting bances riots as at them for result of doing their sudden duty altercation I 2 3 4 5 6 7 8 9 10 I. Andhra Pradesh . . . . . . 81 I01 no 61 8 54 5 281

2. Assam . . . . . . . . 25 95 42 4 .. 40 2 ..

3. Bihar . . . . . . . . 6o 19 27 I .. :14 .. 448

4. Gujarat . _. . . . . . .. .. .. .. .. ..

5. Jammu & Kashmir . . . . . 6 9 2 .. .. IO .. 24

6. Kerala . . . . . . . . 3 52 28 7 . . I7 .. 65

7. Madhya Pradesh . . . . . . I04 169 43 11 3 123 4 449

8. Madras . . . . . . . 47 75 78 4 4 162 18 283

9. Maharashtra. . . . . . . .. .. .. .. .. .. .. .. Io, Mysore . . . . . . . 40 68 58 5 4 69 I 334

11. Orissa . . . . . . . . I7 ".39 N I .. .. :7 :.___ 114 : 2 3 4 5 6 7 8 9 I0 I2. Punjab . 62 I94 45 44 5 I52 - - 458 I3. Raiastnan , , 38 73 45 1° 5 41 7 305 X4. Uttar Pradcsh , . . . . . . . . . . . . . . . . .

15. West Bengal 22 I01 48 79 .. 139 15A. Calcutta . I0 3.' 3 - - - - 3

16. A. & N. Islands . . I . . I :7. Delhi , _ _ .. .. . . - -

18. yHimacha1 Pradesh 5 3 - - 2 3 I9. "Manipur , . . 2 I 1 » 2 2o. Nagaland ' , . . . . . . I - -

2I. Pondichcrry . - - - - ° - ' "

22. Tripura . 2 3 I 3

1. Based on ﬁgures supplied by Home Ministry-

MURDERS IN INDIA IN 1952 Causesaof Murders S.N0. State Murders Deliberate Murders Murders Murders Murders Murders Miscella- for gain murders committed for pur- of public inland in neous in revenge during poses of servants disputes communal party terrorisa- or persons distur- feuds & tion assisting bances riots as a them for result of doing their sudden a1- duty tercation I 2 3 4 5 6 7 8 9 I0 I. Andhra Pradesh 65 I19 106 I6 16 58 4 363

2. Assam . . 33 90 56 5 61 .. ..

3. Bihar 74 I2 28 I 148 . . 504

4. Gujarat , _ .. .. .. .. .. .. ..

5. Jammu & Kashmir 6 7 6 .. 3 .. I9

6. Kerala . . 9 62 23 6 I 16 .. 86

7. Madhya Pradesh .: )3 I42 48 21 1 142 I 444

8. Madras . . 57 76 82 I3 1 205 I4 352

9. Maharashtra . . . . . . . . . . . . . . . . 10- MYS0re . . . 44 S4 55 7 I 105 I 357

11. Orissa . . . . 23 31 .. 2 37 . . I47

12. Punjao . . . 49 219 55 3o 2 158 I 414

13. Rajasthan . . . . 51 87 58 ' I8 7 44 5 218 I4. Uttar Pradesh , , , .. .. . .2 . . .. . . . . . .

15. West Bengal , , , I0! 66 . I 88 8 112 ISA. Calcutta . . . . 9 27 7 .. .. .. .. 2 16- A&N Islands . . . . I . .. . .. .. I I7. Delhi . . . . . . .. .. . .. .. .. .. I8. Himachal Pradesh . , 6 . . 1 . . 3 , , 7 I9. Manipur . . . . . I .. I . 5

20. Nagaland . . . . I .. . .. ..

21. Pondicherry . . . . . . . . . . . .

22. Tripura . . . . 3 2 I . I 13 888 Munmzns IN INDIA IN I953 Causes of Murders S.No. State Murders Deliberate Murders Murders Murders Murders Murders Miscel- for gain murders committed for pur- of public in land in laneous in revenge during poses of servants disputes communal ' party terroriSa- or persons distur- feuds & tion assisting bances riots as a them for result of doing their sudden a1- duty tercation I 2 3 4 5 6 7 8 9 I0 I Andhra Pradesh . . . . . . 73 I08 99 II 4 74 6 348 2 Assam . . . . . . . . 26 95 59 5 I 42 -- -- 3 Bihar _ . . _ , , , . 68 18 I7 2 . . II2 I 463

4. Gujarat . . . . . . . .. .. .. .. .. .. .. ..

5. Jammu & Kashmir . . . . . I3 9 5 .. .. 4 .. I2

6. Kerala . . . . . . . . 7 45 21 9 .. I9 3 104 7 Madhya Pradesh , , , _ , , 94 I48 58 I6 7 I44 9 516 8 Madras . . . 54 9o 71 9 3 183 I7 359

9. Maharashtra . . . . . . . . . . . . . . . . . . . .

10. Mysore . . . . . . . 53 46 57 5 5 84 .. 350 II. Orissa . _ , _ , , . I3 38 .. .. .. 27 .. I46

12. Punjab . . . . . . . 45 I12 31 1o 3 134 . . 409 I3. Rajasthan . . . . . . . 4o 69 36 7 6 45 3 191

14. Uttar Pradesh _ _ _ , _ _ . . . . . . . . . . . . . . . . I5. West Bengal . . . . . . 31 83 63 I .. 82 .. 114 15A. Calcutta . . . . . . . I2 32 I0 . . . . . . . . 3 I6. A&N Islands 3 .. 1 I7. Delhi . . . . . . . . .. .. ..

18. Himachal Pradesh . . . . . I 3 3 I9. Manipur . . 2 . .

2o. Nagaland 2

21. Pondieherry .

22. Tripura u.

U) N 5'' III 0.2 Av-ocz W8 Murders Deliberate S. State for .murders in No. gain revenge I 2 3 4 I. Andhra Pradesh . 54 113

2. Assam . 20 I 16

3. Bihar . 73 25

4. Gujarat . . . . .

5. Jammu and Kashmir 7 9

6. Kerala . . 3 62

7. Madhya Pradesh . 87 169

8. Madras . 34 106

9. Maharashtra . . . .

IO. Mysore 43 63 1 1. Orissa I4 58 I2. Punjab 28 I22

13. Rajasthan 31 75 I4. Uttar Pradesh . . . .

15. West Bengal 23 83 15A. Calcutta . I2 39

16. A. & N. Islands . .. 2

17. Delhi . . . _ . . , I8. Himachal Pradesh . . I

19. Manipur . , _ _

20. N agaland . . . I

21. Pondicherry . , , . .

22. Tripura . I 3 MURI5ERs iN lNr>1A lN 1954 Causes of Murders Murders com- Murders 7Murders of Murders Murders in mitted during for public in land communal petty feuds purposes of servants disputes distur- and riots terrorisa-- or persons bances as a result tion assisting of sudden them for altercation doing their duty 5 6 7 8 9 84 8 7 80 9 64 3 40 . .

17 . . I22 . .

'4 "'1 I 'i I'.

19 7 14 1 37 25 II 157 8 67 6 4 162 13 .5.6 . .3 I .8.7 .I.I 2 . . . . 27 . .

29 8 3 I14 . .

35 5 3 33 9 59 71 . .

7 I . .

. . 2 . .

I' '5 '2 Miscel-

laneous IO 356 48é ii;

68 508 298 315 162 325

I75 105 NNwoo\15 SZS ,_.--_.__i __v Munmzns IN INDIA IN 1955 Causes of Murders S.N0. State Murders Deliberate Murders Murders Murders Murders Murders Miscclla~ for gain murders committed for pur- of public in in neous in revenge during poses of servants land communal party terrorisa- or persons disputes distur- feuds & tion assisting! bances riots as a them for?

result of doing their sudden 2.1- duty tercation I 2 3 4 5 6 7 8 9 1o

1. Andhra Pradesh .| 46 $102 86 19 6 58 II 317

2. Assam . . . 23 r07 62 6 2 47 . . . .

3. B1h_ar . 91 28 21 2 . . I27 .. 468

4. Gujarat . . .. .. .. .. .. .. .. ..

5. Jammu & Kashmir . I2 12 5 .. 16 I 21

6. Kerala . . . ' 3 68 27 9 1 15 2 93

7. Madhya Pradesh .| 74 I67 55 23 5 I61 7 525

8. Madras . . . 39 84 64 3 8 189 20 333

9. Maharashtra . . . 6 . . . . . . . . . . . . . . . . Io. Mysore . . 31 69 so [3 3 85 5 336

11. Orissa . I2 42 .. ['2 .. 23 . . 176 I2. £111_1l3t1';1 n . . 3o Igr 29 11 5 IOI . . 311

13. ajas a . . 2 :4. gm gradcfh . 3 :7' '.'7 5 .'.' '.5 .'.' 1??

15. est enga . . 26 6 _ 1 1 15/' . Calcutta . . . 6 g . 3;

16. A&N Islands . . . g4 . . , _ _ 1

17. Delhi . . . . . .. .. .. .. . . ..

18. Himachal Pradesh . . I . [2 [2 . . 5 19- Manipur . . . .. .. .. .. . . 6 2o. Nagaland . . . . . . 2 1

21. Pondicherry . . . . . . . . , _ I

22. Tripura . . 4 _- [3 , 5 '.2- -9.

988

MURDERS IN INDIA IN I956 S.No. State Murders Deliberate Murders Murders Murders Murders Miscel- for gain murders committed for pur- of public in land in I laneous in revenge during poses of servants disputes communal party terrorisa- or persons distur- feuds & tion assisting bances 'I ' riots as a 'them for result of doing their sudden al-] duty tercation 1 2 3 4 5 6 7 8 9 I0 I. Andhra Pradesh 64 no 73 2o 5 56 It 388

2. Assam . . 24 100 51 7 .. 54 .. . .

3. Bihar 97 28 18 I . . 106 . . 502

4. Gujarat . . .. .. .. .. .. .. .. ..

5. Jammu & Kashmir 12 8 5 . . . . 2 . . I7

6. Kerala . . . . 54 2o 8 . . 16 1 7r

7. Madhya Pradesh 104 170 49 32 7 134 7 614

8. Madras 45 95 86 8 5 159 22 276

9. Maharashtra. .. .. .. .. .. .. .. .. IO. Mysore 33 63 46 3 3 81 8 327

11. Oris_sa . . I6 41 .. I .. 23 .. 185 I2. Puruab . 27 83 39 7 5 73 I 341

13. Rayasthan . 32 83 33 11 9 25 8 180

14. Uttar Pradesh . . . . . . . . . . . . . . . . I5. West Bengal 3o 92 67 I . . 81 2 136 15A. Calcutta . 4 24 5 . . . . . . . 1o

16. A&N Island: I 3 . . . . . . . I I7. Delhi. . . .. .. .. . .. .. ..

18. Himachal Pradcsh I 3 . . . . . . 7 I9. Manipur . . . . . I . . . . 2 9 2o. Nagaland . . . . 2 4o 6 . . 3

21. Pondicherry . . . . . . . . . . . 3

22. Tripura I 4 I . 4 Causes of Murders Murders LZ8 MURDERS IN INDIA IN 1957 Causes of Murders 8- State Murders Deliberate Murders c0m- Murders for Murders of Murders Murders Miscel- N°- for gain murders in mitted purposes of public in land in laneous revenge during terr0risa- servants disputes communal party feuds tion or persons distur- and riots assisting banccs as a result them for of sudden doing altercation their duty ' 2 3 4 5 6 7 8 9 I0 I. Andhra Pradesh _ 60 I04 I I1 29 6 73 I2 507 :- - - gtl 108 53 6 I 44 .. ..

4. Gujarat , _ 27 . . 3 108 r 540

5. Jammu and Kashmir - - . . . . . . . . . .

6. Kerala . . r13 3: 2% 2 'g- Matiihya Pradesh . 109 183 49 33 8 I54 6 644

- 3 "S - - 37 97 75 7 7 I84 35 278 9- R/llaharashtra _ _ _ , _ _ '°' 339°" 39 70 47 3 '5 91 '4 375 II. Orissa 9 45 __ H 35 H 158 12- Pumab 27 74 26 5 4 79 388 I3. Rajasthan 23 70 34 1° 6 51 20 I4. Ivéttar Pradesh _ . _ _ _ _ 9 IS. est Bengal 5 ' ' ' ' ' ' ' ' ISA. Calcutta _ , 25 13:, 73/. I 2; 99 I25

16. A. & N. Islands . _. 2 I " 3 I7. Delhi . . . ' ' --

18. Himachal Pradesh ? Ii ,9, "5 I9. Manipur , __ 2 __ __ I I6

20. Nagaland . _ . _ I I0

21. Pondicherry 2 _ . _ _ ' '

22. Tripura 3 3 I 7 838 Mummzs IN INDIA IN 1958 Causes of Murders Murders Deliberate Murders Murders Murders of Murders Murders Miscellane- State for gain murders in committed for public in land In Ous revenge during purposes servants disputes communal party feuds of or persons distur- and riots terrori-- assisting bances as a re-- sation them for sult of doing their altercation duty 1 2 3 4 5 6 7 8 9 IO

1. Andhra Pradesh 60 I 34 97 1 I 5 77 5 469

2. Assam . 23 117 58 6 r 51 .. __

3. Bihar . 93 30 35 I .. 121 .. 571

4. Gujarat . > . .. .. .. .. .. .. .. ..

5. Jammu and Kashmir. 6 15 4 2 1 8 _. 31

6. Kerala . . 3 79 26 8 4 30 4 I07

7. Madhya Pradcsh I16 203 58 37 12 131 7 616

8. Madras . 31 ro4 7o 13 9 144 26 297

9. Maharashtra . . . . . . . . . . . . . . Io. Mysore 35 57 56 3 2 79 2 410 II- 011553 I4 9 .. .. .. 40 197

12. Punjab 20 102 26 6 5 I I0 .. 331 I 3. Raiasth-an 37 91 47 8 3 37 13 192

14. Uttar Pradesh .. .. .. .. .. .. .. ..

15. West Bengal 37 I07 64 I 76 124 r5A. Calcutta . . 1 29 2 . . . . 4

16. A. & N. Islands . .. . . .. .. .. 4

17. Delhi . . . 13 I5 19 _, ,_ 17 I8. Himachal Pradesh . _. 3 1 _ _ 3 5

19. Mampuf - I . . 2 . . . . 6

20. Nagaland I I . . 2 . . 3

21. Pondicherry . . . . . . . . . . 4

22. Tripura 2 3 4 2 3 638 Munmms IN Irmm m 1959 Causes of Murders State Murders Deliberate Murders 088 Murders Murders Murders Murders Miscel- for gain murders committed for pur- of public in land in laneous in revenge during poses of ter- servants disputes communal party 'rorisation or persons distur- feuds & assisting bancese riots as a them for result of doing their 5!» sudden a1- duty 1-' tercation~ 1 2 3 4 5 6 7 8 9 I0

1. Andhra Pradesh 69 I32 80 9 3 71 9 390

2. Assam . . 29 I11 55 6 4 49 . . . .

3. Bihar 86 2o 26 . . 2 123 4 548

4. Gujarat . . .. .. .. .. .. .. .. ..

5. Jarmnu & Kashmir 8 12 5 .. .. 6 .. 3o

6. Kerala . . . 4 82 35 10 x 31 5 no 7 Madhya Pradesh 118 2x5 57 41 7 171 n 674

8. Madras 33 8o 96 5 r 159 3x 303

9. Maharashtra .. .. .. .. .. .. . .. I0. Mysore 39 62 70 I 5 92 . 377

11. Onssa . 21 29 . . . . I I6 234

12. Punjab 24 I00 38 8 6 116 310

13. Rajasthan . 45 82 33 6 8 46 227

14. Uttar Pradesh . . . . . . . . . . . . . . .

15. West Bengal 22 92 70 2 . . 87 . I40 15A. Calcutta . 4 23 5 . . . . . . . 2 I6. A&N Islands . . I . . . . . . . . . 2

17. Delhi . . . 21 I8 10 . . . . . . . . 24

18. Himachal Pradesh 4 I I . . . . 5 . . 9

19. Manipur . . . 3 2 . . 2 . . 2 5

20. Nagaland . . . . . I 2 . . . . . 3

21. Pondicherry . .. 2 . . . . 1 .. . . 2

22. Tripura . . 5 6 3 I . . 2 . . 8 MURDERS IN INDIA IN 1960 Causes of Murders . No. State Murders Deliberate: Murders Murders Murders Murders Murders Miscel- for gain murders committed for pur- of public inland in laneous in revenge '_durin g noses of ter- servants disputes communal party crrisation or persons distur- feuds & assisting banccs} riots as: them for result of doing their sudden al- duty tercation I 2 3 4 5 6 7 8 9 I0

1. Andhra Pradesh , 73 I67 90 IO 6 66 I0 450

2. Assam . . 41 129,' Q 70 8 5o 26 . .

3- B1h_ar . . 76 2! 36 . . . . 136 1 550

4. Gujarat . . . 45 I38 11 . . II 53 I 638

5. Jammu & Kashmir _ 9 9 6 4 __ 5 ,_ 23

6. Kerala . . . 2 74 33 I3 I 21 3 85

7. Madhya Pradesh . I12 '86 51 53 [4 190 I 672 8- Madras . . 33 95 65 8 I 164 28 284 9- Maharashtra . . .. .. .. .. .. .. .. .. 10- MYSOIC . . 36 71 W 71 2 89 . . 391 11- 0riSSa . I41] I3I I .. .. I I5 . . 282 12- gtlfliala 23)! 90. ' 33 6 8 82 .- 299 I3. a)ast an 28 ' 81 8 32 .2" :3 .7 3 #7 3 3 15- CS3 1183 31 » 93 9 ' 61 I 84 I 117 15/ Calcutta , 4 "32 Q 5 __ __ ,_ 9 16- A&N1S1=mdS .. .. .. .. .. .. .. x I7. Delhi . . . . 8 17 IO .. .. . . .. 21

18. Himachal Pradesh _ 3 '2 _ _ _ _ _ _ 1 _ _ xo

19. Manipur . . .. 4 [1 .. I 1 6 :8 2o. II;Tag§!aEd 1 , . 7 x . . . . I

21. on 1C erry __ g __ __ _ 5

22. Tripura 4" 15" E" 2 2 7

29.» I88 MURDERS IN lNI>1A IN I961 Causes of Murders S. No. State Murders Deliberate Murders Murders Murders Murders Murders for gain murders committed for pur-- of public in land in in revenge during poses of ter- servants disputes com.munal party rorisation or persons distur- feuds & assisting bances riots as a them for result of doing their sudden a1- duty tercation I 2 3 4 5 6 7 8 9

1. Andhra Pmdesh 78 I63 104 II 5 64 11

2. Assam 34 I26 57 5 . . 66 3 3- Bihar 87 I 5 27 3 2 I45 . .

4. Gujarat _ _ 44 79 42 . . 13 48 . . 5- Jammu & Kashmir 3 IO 5 . . 1 6 I

6. Kerala . . 5 74 18 I2 I 38 2 7- Madhya Pradesh I34 204 58 47 I2 I86 33

8. Madras 38 I09 42 9 4 I62 6 9- Maharashtra . . . . . . . . . . . . . .

10. Mysore 38 79 63 2 I 85 3 II. Orissa I3 22 . . . . . . 22 . .

I2. Punjab 23 89 26 8 8 77 . .

I3. Ra;-asthan _ , 31 77 34 II 6 58 5 I4. Uttar Pradesh . . . . . . . . . . . . . . . 15- West Bengal. , 31 92 63 . . I 80 15A. Calcutta _ , 4 26 3 . . . . . .

I6. A&N Islands . I . . .. . . .. .. ..

17. Delhi . . . . 8 I6 7 .. .. .. ..

I8. Himachal Pradesh . . 2 4 I . . . . 2 . . 19- Manipur , , I 2 3 . . . . 1 4 20- N1'-galand .. I . . 7 5 . . . .

2r. Pondicherry . . . . . . . . . . . . .

22. Trlpura _ _ . 4 5 3 1 Miscel-

laneous 704 33° 46;

213 314

2x7 xéi 2 21 II I4 882 'P?°T'?"~."'!"~."!°'."

MURDERS IN INDIA IN 1951 Detailed Analysis of means of causing murders Means employed to commit murder I_. Based on ﬁgures supplied by Ministry of Home Affairs:

State _By . By By By By By Mis- Remarks, poisoning hanging throttling blunt sharp the use eella- if any or stone weapons, edged of neous throwing lathi weapons ﬁre-arms sticks, etc. 11 12 13 I4 I 5 I6 17 18 Andhra Pradesh 25 8 35 195 180 66 192 A W" V-

A_ssam . . I 20 5 45 112 2 23 l(3}1h_ar at 22 8 46 187 320 3 83 11131' . . . . . . . . . . . . . . . .

Jammu and Kashmir 3 2 4 17 II . . 14 Kerala . . . . . . 1 3o 98 5 38 Madhya Pradesh 20 I2 60 206 307 59 162 Aﬁaﬁgaishtra 4 I4 20 110 346 5 172 a r . . . . . . . . . . . . . . .

Mysore 7 II 25 124 227 31 154 Or1s_sa . 11 I 11 56 72 I 46 Punyab 6 3 29 83 440 226 184 gzzytasghsiladesh 7 4 18 124 108 36 133 a . . . . . . . . . . . . . .

West Bengal 3 11 97 I83 4 9r .Eal§zu§Ia I 1 hd I 8 11 36 .. ..

. . s a s . .' . . . . 2 . . . .

Delhi. . . .. .. .. .. .. ..

Himachal Pradesh I 1 3 4 I 3 Manipur . . . . . 1 5 . . . .

Nagaland . . . . I . .

Pondicherry . . . . . . .

Tripura I I 6 888 Munbsizs IN INDIA m 1952' _ ___..._.

Means employed to commit murder S. State By By By By By By Mis- Remarks, No. poisoning hanging throttling blunt sharp the cellaneous if any or stone weapons, edged use of throwing lathis, weapons ﬁre-arms sticks, etc. 11 12 13 14 15 I6 17 I8

1. Andhra Pradesh 16 8 39 203 178 26 277

2. Assam . 5 14 4 72 120 4 26

3. Bihar 14 16 38 187 369 6 I37

4. Gujarat . . .. .. .. .. .. .. ..

5. Jammu and Kashmir 2 I 3 5 1o 5 Is

6. Kerala . . 1 . . 3 20 137 . . 42

7. Madhya Pradesh 25 4 61 289 275 80 168

8. Madras . 7 17 15 144 408 9 200

9. Maharashtra . . . . . . . . . . . . . . . 1o. Mysore 5 IO 31 118 261 24 185

11. Orissa I2 5 I4 75 82 2 so

12. Punjab I3 2 44 89 416 223 141

13. Rajasthan . 11 9 21 137 120 53 137

14. Uttar Pradesh . . . . . . . . . . . . . .

15. West Bengal I . 7 115 194 6 77 15A. Calcutta . I 4 12 25 3 . .

16. A. & N. Islands . . . . . . 2 . . . .

17. Delhi . . . .. .. .. .. .. ..

18. Hirnachal Pradesh I 1 4 5 3 3

19. Manipur . . . . . . . I 6 . . . .

2o. Nagaland . . . . I . . . .

21. Pondicherry . . . . . . . . . . .

22. Tripura . . . . 2 5 . . 13 $88 Munmzns IN INDIA IN 1953 Means employed to commit murder.

S. State By By By By By By Mis- Remarks, No. poisoning hanging throttling blunt sharp the cellaneous if any or stone weapons, edged use of throwing lathi weapons ﬁre-arms sticks, CIC.

1 1 12 1 3 14 15 16 17 1 8

1. Andhra Pradesh . . . . . . 14 6 54 215 218 4 211

2. Assam . . . . . . . . 2 24 3 29 147 1 23

3. B1h_ar . . . . . . . . 12 7 50 145 340 12 115

4. Gujarat . . . . . . . .. .. .. .. .. .. ..

5. Jammu and Kashmir . . . . . I . . 5 1o 9 4 14

6. er a . . . . . . . . . . . 4 34 116 6 48

7. Madhya Pradesh . . . . . . 21 8 50 312 339 71 191

8. Madras . . . . . . . 4 21 19 122 392 6 222

9. Maharashtra . . . . . . .. .. .. .. .. . . 1o. Mysore . . . . . . . 12 6 34 118 213 18 199 II. Orissa . . . . . . 3 16 55 90 4 56

12. Punjab . . . . . . . 14 2 47 62 345 165 118

13. Rajasthan . . . . . . . 11 6 17 118 113 35 102

14. Uttar Pradesh . . . . . . . . . . . . . . . . . .

15. West Bengal . . . . . . 2 3 3 108 190 4 64 15A. Calcutta . . . . . . . .. . . 8 IO 38 1 ..

16. A. & N. Islands . . . . . . . . . . . . 3 I . . I7. Delhi . . . . . . . . . .

18. Himachal Pradesh . . .. 1 4 4 4 2

19. Mampur . . . 4 5 1

20. Nagaland . . . . 1 6 . .

21. Pondicherry . . . . . . . .

22. T1-ipura . . . .

o 9-4 H.

0. VI 988 MURDERS IN INDIA IN r954 Means employed to commit murder S. State By By By By By By Mis- Remarks, No. poisoning hanging throttling blunt sharp the cel1ane- if any, or stone weapons, edged use of ous. throwing lathi weapons ﬁre-arms sticks, CIC.

II I2 13 I4 I 5 I6 17 I8 I. Andhra Pradesh I8 8 36 206 I90 7 246

2. Assam . . . . I4 6 48 I39 I 35

3. Bihar _ I2 7 59 203 335 I8 92

4. Gujarat . . .. .. .. .. .. .. ..

5. Jammu and Kashmir .. 3 IO 4 3 17

6. Kerala . I . . 3 16 118 I 35

7. Madhya Pradesh 15 I0 68 327 339 78 165

8. Madras . 3 26 12 I00 334 2 213

9. Maharashtra , . . . . . . . . . . . . . . Io, Mysore .3 7 31 I16 25-1 28 173 II. Orissa . IO 4 18 8o 85 . . 66

12. Punjab 16 2 66 44 359 95 77

13. Rajasthan . I0 5 I7 I05 110 27 98 I4. Uttar Pradesh . . . . . . . . . . . . . .

15. West Bengal 4 6 86 165 4 77 15A. Calcutta . 2 5 9 42 2 3

16. A. & N. Islands .. .. 2 2 . . .. I7. Delhi . . . .. .. .. .. .. .. .. I8. Himachal Pradcsh 2 I 2 2 2 . . I I9. Manipur , . . . . . . I 6 I . .

20. Nagaland . 4 . . . . . .

21. Pondicherry . . . . . . . 2

22. Tripura 2 4 2 988 'A\1?'I zzI--£z S. State No.

1. Andhra Pradesh

2. Assam .

3. Bihar

4. Gujarat . .

5. Jammu and Kashmir

6. Kerala . .

7. Madhya Pradesh

8. Madras .

9. Maharashtra .

I0. Mysore

11. Orissa I2. Punjab

13. Rajasthan .

I4. Uttar Pradesh I 5. West Bengal 15A. Calcutta .

16. A. & N. Islands

17. Delhi . . . . . . ,

18. Himachal Pradesh , _ , , I9. Manipur _ , _ , _ .

2o. Nagaland _ _ _

21. Pondicherry , _ _ , _ _

22. Tripura . . . . . .

By poisoning hanging II Muimi:-.<s IN INDIA IN 1955' I I2 ~ -r-I . ,_,...

'Ln-:---wu._;;\,.mu,. . .

I Means employed to commit murder Mis-

By By By By By Remarks, throttling blunt sharp the use eellane- if any or stone weapons, edged of ous throwing lathi weapons ﬁre-arms sticks, etc. 12 13 14 I 5 I6 I 7 I8 9 31 159 219 15 201 I7 4 43 I42 5 26 I4 35 177 372 I2 I IS 2 18 13 18 16 . . . . 32 141 1 45 I 3 68 332 348 85 I 58 23 13 116 346 8 229 8 37 98 233 27 I72 . . 26 89 43 . . 98 2 42 39 343 79 I03 I 18 I09 I12 36 1 r3 . 14 I02 202 4 68 . . 7 6 24 I I . . . I 4 . . . .

I I 5 3 I 4 . . . 1 3 I . .

1 2 I . .

. . . . . . 1 2 3 I 7 L88 MURDERS IN INDIA 1956 Means employed to commit murder Miscellanc- RC!I131'1<Ss

3. By By By BY BY BY V N0- State poisoning hanging throttling blunt sharp the use nus 1f any or stone weapons, weapons of ﬁre- throwing. lathi arms sticks. etc. 1 1 12 13 14 15 I6 I7 13

1. Andhra Pradesh 18 11 41 154 181 9 313

2. Assam . . 1 15 6 47 I36 3 28

3. Bihar . 22 6 59 135 358 9 113

4. Glliarut . . .. . .. .. . . . .

5. Jammu and Kashmir 4 3 11 16 I0

6. Kerala . . . . , , , .. 16 120 7 27

7. Madhya Pradesh. 15 14 81 336 373 122 176

8. Madras . 13 34 13 126 309 I I I90

9. Maharashtra . . . . . . . . . . . . . . 1o. Mysore 7 9 30 1 11 227 20 160

11. Orissa 5 21 88 39 . . 113 I 2. Punjab 14 .. 39 48 349 67 59

13. Rajasthan 4 4 22 120 1 19 35 77 I4. Uttar Pradesh .. .. .. .. .. .. ..

15. West Bengal .. 2 16 m6 195 5 85 15A. Calcutta . . _ 7 4 31 1 . .

16. A. & N. Islands .. .. .. 5 ..

17. Delhi . .. .. .. .. ..

18. Himachal Pradesh 1 I 3 4 I I I9. Manipur . . . 2 7 1 2

20. Nagaland . . 4 5 42

21. Pondichcrry 1 . . 2 . .

22. Tripura 2 4 4 888 MURDERS IN INDIA IN 1957 S. State By No. poisoning II I. Andhra Pradcsh 22

2. Assam . . .

3. Bihar . 14

4. Gujarat . . . .

5. J amrnu and Kashmir 3

6. Kcrala '. . . .

7. Madhya Pradesh 22

8. Madras . 8

9. Maharashtra . . .

Io. Mysore 7 II. Orissa . 3 I2. Punjab 16 I 3. Raiasthan . 9 I4. Uttar Pradesh . .

I 5. West Bengal 6 15A. Calcutta . I

16. A. & N. Islands ..

I7. Delhi . . . 3

18. Himachal Pradesh 3 I9. Manipur . . .

2o. Nagaland .

21. Pondicherry .

22. Tripurn B.v hanging Means employed to commit murder By By By By Mis-

throttling blunt sharp the use ce11ane-- or stone weapons, edged of ous throwing lathi weapons ﬁre-arms sticks, etc. I3 I4 I 5 I6 17 41 2oI 208 9 408 6 47 I22 7 38 45 200 375 3 I44 5 18 13 I0 14 4 37 I55 4 42 55 354 434 I45 I73 13 I20 237 I4 I94 29 I07 268 13 I85 19 75 37 - - I I3 36 39 352 61 99 I5 I14 I45 45 78 I7 I I I I91 6 99 5 5 30 I 4 9 2 24 I I I 3 5 4 I 2 . . 3 I2 2 2 . . . . I I2 . .

3 3 3 - - I I 3 8 I 7 Remarks, if any 688 MURDERS IN INDIA IN 1958 Means employed to commit murder S. State By By By By By By Mis- Remarks, 0178 No. poisoning hanging throttling blunt sharp the use ce11ane- if any or stone weapons, edged of ous throwing lathi weapons ﬁre-arms sticks, etc. 11 12 13 14 15 16 17 18

1. Andhra Pradesh . . . . . . 17 11 51 236 234 9 297

2. Assam . . . . . . . . . 26 3 23 134 17 43

3. Bihar . . . . . . . . 14 11 53 231 420 15 107

4. Guiarat . . . . . . . .. .. .. .. .. ..

5. Iammu and Kashmir 2 2 5 21 16 3 18

6. Kerala . . . . . . . 1 6 14 186 4 5o

7. Madhya Pradesh . . . . . . 19 9 61 355 434 118 184

8. Madras . . . . . . . 8 40 I3 116 344 6 167

9. Maharashtra . . . . . . . . . . . . . 1o. Mysore . . . . . . 1o 14 29 124 245 31 191

11. Orissa . . . . . . . . 4 . . 25 77 33 .. 121

12. Punjab . . . . . . 9 2 26 35 391 63 74

13. Raiasthan . . . . . . . 14 8 23 128 134 55 66

14. Uttar Pradesh . . . . . . . . . . . . . . . . . . .

15. West Bengal . . . . . . I . . 12 105 205 7 79 15A. Calcutta . . . . . . . . . . . 3 5 24 . . 4

16. A. 8: N. Islands . . . . . .. .. .. 3 1 . ..

17. Delhi . . . . . . . . 6 8 3 37 3 7

18. Himachal Pradesh . . . .. I 6 4 1 1

19. Manipur . 3 3 3 . .

2o. Nagaland 2 2 3 . .

21. Pondicherry . 1 .. 3

22. Tripura 2 5 4 3 NIURDERS XN INDIA IN 1959 Means employed to commit murder .___- , ??.___._ .___..__ ___..____. ._._ .____. .._V__ _» _.-_.--_.-- ----------:----------<-- --»--------»Z----------------------- "T""""'> " '" "' --' State By By By B By By MIs- Remarks, poisoning hanging throttling blunt sharp the use cellane- If any or stone weapons, edged of ous throwing lathi weapons ﬁre-arms sticks, etc. I I 12 I3 14 15 I6 17 I8 Andhra Pradesh . . . . . . I7 I3 52 I68 223 7 283 Assam . . . . . . . . I 29 6 25 I37 9 47 B1h_ar . . . . . . . . 14. I3 53 I98 370 I6 I45 Gujarat . . . . . . . .. .. .. .. .. .. .. Iammu and Kashmir . . . . . 3 3 4 21 9 7 I4 Kerala . . . . . . . . . . . . 8 22 191 8 49 Madhya Pradesh . . . . . 24 I2 82 354 508 I 23 I9 I Madras . . . . . . . 9 28 23 I24 358 5 I61 Maharashtra . . . . . . . . . . . . . . . . . . Mysore . . . . . . . 13 I6 46 I13 253 27 I78 Orissa . . . . . . . . 4 . . 29 83 32 I 152 Punjab . . . . . . . 7 . . 34 48 343 96 74 Raiasthan . . . . . . . 8 8 20 I56 I23 48 91 Uttar Pradesh . . . . . . . . . . . . . . . . . . . West Bengal . . . . . . 7 I 18 9I 209 4 83 . Calcutta . . . . . . . . . .. 3 5 23 I 2 A. & N. Islands .. 3 . .

Delhi . . . . . . . . 3 . . 6 5 52 I 6 Himachal Pradesh . . . . . I . . 4 3 4 2 6 Manipur . . . . . . . . . . . . 3 8 3 . .

Nagaland . . 1 . . 2 Pondicherry . . . . . . . . . . . . . . 6 2 . . Tripura . . . . . . . I . . . . 4 9 2 9 H18 S State MURDERS IN INDIA IN 1960 Means employed to commit murder . By By By By By By Mis- Remarks, No. poisoning hanging throttling blunt sharp the cellane- if any or Stone weapcns, edged use of ous throwing lathi weapons ﬁre-arms sticks etc. I I I 2 I 3 I4 I 5 I 6 I7 1 8 I. Andhra Pradesh 23 I7 65 214 253 I2 288

2. Assam . . . I3 9 60 178 14 5o

3. Bihpr 13 14 61 202 372 14 144

4. Gujarat . . 7 . . I00 211 486 69 24

5. Jammu and Kashmir 3 5 16 18 6 13

6. Kerala . . . . . 2 24 I66 3 37

7. Madhya Pradesh ' I9 14 76 339 490 I03 238

8. Madras I7 34 17 I18 339 6 I47

9. Maharashtra .. .. .. .. .. .. .. Io. Mysore 7 5 28 I29 270 28 I92

11. Orissa . 3 . . 37 96 35 I 153 I2. Punjab . 8 I A 31 26 320 93 62 I3. Rajasthan . . . 8 II 34 139 I17 43 I00

14. Uttar Pradesh . . . . . . . . . . . . . . . .

15. West Bengal . . 2 3 22 I02 I79 9 72 15A. Calcutta . . I . 5 8 34 I 2

16. A. & N. Islands .. .. I .. . . .

17. Delhi . . . 4 6 6 33 2 5

18. Himachal Pradesh I 3 7 2 3 I9. Manipur 1 5 23 I I

20. Nagaland . . . . I 9 . .

21. Pondicherry

22. Tripura H H H N Z178 ' 'O°°\':""'."'?"?°E"."

NLURDTIRS IN INDIA By State ' ' pa-.';3111r1<;

1 1 Andllra Prmlcsn 22 Assam 3 Bihar. . 3-1- G-ljaml . . 11 Jam, 114 and K1Sl'):11'1' I l{r:ra';a. . . 2 lvladnya Prad.-sh I0 Madras 7 Mlnaraslura - -

Mysore 16 Orissa 3 Punjab 3 R-r1i.xsLl1m 10 Uttar Pradcsh .-

West Bsngal 5 Calcutta . I A. & N. Islands . .

Delhi . . 3 l'llI'l'L'clCl"l.8.l Pradcsh . . . . . . Manipur . . . . . . . I Nagaland Pondichcrry . . . . . . .

Trjpura . . . . . . . I IN 1961 By B)' hanging throttl 7 n g or Stone throwing 12 13 7 63 18 17 9 72 5 82 . . 6 . . )4 5 . S 25 27 ':3, '43 . . 2 . . 38 7 34 ' '1 '25 4 7 "i I By blunt weapons, lat.-hi sticks.

CIC.

201 25 195 193 33 385 146

13-6 69 42 I33 {:3 UINIJNOOCRZ Means employed to commit murder BY Mis-

sharp the cel1ane-

edged use 0|' ous weapons ﬁre--arms 15 16 I7 262 10 275 I69 9 59 401 15 137 484 46 47 T6 3 13 175 I 34 527 150 213 348 6 I32 291 21 162 34 I 140 341 64 2 133 30 92 203 5 (,3 23 1 2 I . .

31 2 3 6 . . 6 I8 I 3 5 I0 . .

2 I I 7 2 6 ,_ \_ _.

B c Remarks, if any ' €178 344 APPENDIX xxxvm I.\'Dm---NUMBER or KIDNAPPING AND ABDUCTION CASES (I953-I962)1 Year No. of cases reported Whether increasetor to the Police decrease compared with previous year 1953 5,261 Increase 1954 5,514 Increase 1955 5,529 Increase I956 5,905 Increase 1957 5,821 Decrease 1958 , , 6,043 Increase 1959 6,459 Increase 1960 . . . . 6,024 Decrease 1951 . . 6,698 Increase I 952 7,1 I9 Increase ISee Crime in India, (1953) page 2, bottom; (1954) page 3, bottom ; (1955) page 3, top; (1956) page 3, middle; (I957) page 4, middle; (1958) page 45 middle; (1959) page 5, middle; (1961) page 7, top; (1962) pages 2 and 7.

345

APPENDIX xxxxx INDIA ---Grmm ox= KIDNAPPING AND ABDUCTION Cases I {REPORTED TO THE POLICE) (1952 to 19623 1 . .

952 1953 1054 3 1955 '3 1955 1957 1958 l 1959 1950 I961 I962 7, 100 7.000 6,900 6,800 6,700 6,600 6,500 6 400 6 .300 6,200 6.100 6,000 5.900 5.800 5x700 5.600 5500 5,400 5300 5,200 5,100 5 ,0OO

1. Based on Crime in India (1952), (1953) and subscquem years.

346

APPENDIX XL Irm1A----NL'~MBER or JUVENILE OFFENDERS APPREHENDED FOR lVlURDERs, ETC. (1958 to 1962) ./;2d2'a--«i\'zm2Z7er qf}zwe2z1'/2 Offenders apprehended for murder etc. zmder Age Groups! (1958--1962) Head of Crime *7-12 *I2-----I7 *r7----2r Murder, attempt to commit mux-- Boys Girls Bcys Girls Boys Girls der and culpable homicide rot amounting to murder.

Year

--- 1958 . . . . 9 2 64 I2 251 -- 30 I959 . . . . 13 2 83 9 425 27 1960 . . I6 . . 151 1 477 13 1961. _ . 17 3 112 6 454 11 1962* . . . . 25 . . 99 11 435 I! I. Based on Crime in India, (1958), page 11; (1959), page (1961), page I3 and (1962), page 15 *Figures for the year 1962 are for the age groups of 7-12, respectively.

13; (I96o\, page II;

12-16 and 16-2! 5 347 APPENDIX XLI ABOLITIONIST AND Rl3'l'l-.I\'TIOl\'IST COLNTRIES, AND RATES OF HOMICIDE, 1962 (ALPHABE'lI- CALLY ARRANGED) Abalitionist and retentionist' countries, and homicide rates 1962 (Note---Ab0lizionist countries whose rates for 1962 were higher than India are underlined) NOTE :»--(1) The rates are the number of deaths per I,O0,000 of the populaticn, and taken from U.N. Demographic Year Book, 1962, and are subject to the observations made in me U.N. Publicaticnﬁ They include deaths from war as well as deaths from homicide.

NOTE :---(2) The rates are, in most cases, for the year 1960, or 1961.

Homicide rates in various countries Explanations of symbols A J --« Abolitlonist De jure A F ----Abolitionist De facto A C --« Almost completely abolitionist R --« Retentionist Abolitianist and Retentionist countries Rate Afghanistan . . . . . . R Arab Republic . . . . . See U.A.R. Argentina (1922) . . . . . A J 46'! (includes accidents, suicides alsoi __._. Australia (except two States) . . . R 1 1- 5 Australia (Queensland) . . . . A I (for whole country) Australia (New South Wales) . . . A C j Austria (1945) except in the event of pro- clamation of a state of emergency . A J I-I Bﬁlgium 0 I 0 0 0 A F 0'7 Brazil (1889) . . . . . . A J IO-8 >.--..__ I Rates are cornpiled from ﬁgures given in.U.N. Publication»---Demographic year Book, 1962, pages 554-572.

2 U. N. Demographic Year Book, (1962), pages 554-----57z.

Burma Cambodia Canada .

Central African Republic Ceylon Chile China (Taiwan) Colombia (1910) Costa Rica (1882) Cuba Czechoslovakia Dahomey Denmark (I930) Dominican Republic (1924) Ecuador (1897) (includes accidents, sui-

cides also) . .

El Salvador Federal Republic of Germany Finland (1949) France Gambia . . .

Germany (Federal Republic) (1949) Ghana Gibraltar Greece Greenland (1954) Guatemala Hong Kong Iceland (1940) India 348 >W'FU7U7U>U7Upa &( > \--« 77 '/'U See 'Germany' A J R R Rate 15 3-3 4-0 0-7 36-4 2-5 2-3 11-0 o-9 0-6 2-6 (Based on "Crime in India"

I962).

Indonesia . . . . . .

Iran . . . . . . .

Iraq . . . . . . .

Ireland . . . 0 . . .

Italy (1944) . . . . . .

Ivory Coast . . . . . .

Japan . . . . . . .

Laos . .

Lebanon Liberia Liechtenstein (I798) Luxembourg Malaya .

Mauritius . . .

Mexico . . . . . . .

(four States out of 29 :'.e. the States of Morelos, Oaxaca, San Luis Potosi and Tabasco) Mexico . . . . . . .

(25 States out of 29 and the federal ter- ritory) Constitution, 1931.

Morocco Netherlands (1870) Netherlands (Antilles) (1957) .

Netherland New Guinea New Zealand . . . . .

(retains for treason only. See Crimes Act, 1961, sections 74 and 172).

Nicaragua . .

Nigeria . .

Northern Rhodesia Norway (1905) Ny asaland Pakistan 349 >';U7°7U7U '-4 :«> ;a>uvo:>3>vo7:w>=7= ""' "rl'Tl A] A] AC 75 ,--.._--~..._, Rate o-9 O'9 33-2 for whole country-

o-4 21-9 3 - %(Nigerin Re- nion) 4-4 Nigeria (I-8808 Federal Territory) o-4 350 Philippines . . . . . . R 2' l Poland . . . . . . . R 1'4 Portugal (1867) . . . . . A J V D ' V I-A San Marine (1865) . . . . A J Senegal . . . . . . R Seychelles . .

Somalia (Northern) . . . .

75>!' Somalia (Central and Southern) South Africa .

Spain Sudan Surinam Sweden (1921) 0-6 0-6 9.4%' Switzerland (1937) .

Tanganyika Thailand Togo Turkey .

United Arab Republic 3 - I 7-"7'>U>U7U>d>>:c::upu:u7a United Kingdom . . . . . 7-0 (for capital murder) United ' dom- England & ales.

o-8 United Kingdom-

Northem Ireland.

I I I 0- 5 E Scotland.

United States of America . . . A J ' Alaska (1957), Delaware (1958), Hawaii (1957), Maine (1887), Minnesota (191 I), Wisconsin (1853).

'l United States of America . . . A C 4-7 Michigan (1847), North Dakota (1915), r Rhodc Island (I852) I /or whole country. United States of America . . . R "

(in principle 42 States out of 50, Dist- rict of Columbia and the Federal Sys- tem). J Union of Soviet Socialist Republics . R Uruguay (1907) . . . . . A J 4-5 Vatican City State .

Venezuela (1863) Vietnam Western Paciﬁc Islands .

Yugoslavia Zanzibar . .

351

Rate A F I A T R R R R 352 APPENDIX XLII COUNTRY--\VISE RATES or HOMICIDIZ, 1962' (COUNTRIES ARRANGED CONTINENT-WISE) (Rates; includes deaths from war also) (Rate per 100,000', Rate per Africa IpC:;;tiI°C:-';io':.'f Mauritius . . . . . . . . . . 0 '9 Nigeria (Lagos Federal Territory) 4'4 Nigeria (Re-Union) . . . . . . . . 3'3 Rhodesia----Southern Rhodesia . 0'9 South Africa----Asiatie Population . . . . . . 55 South Africa-----Coloured Population . . . . . . I4'2 South Africa----\X/hite Population . . . . . . 2'! United Arab Republic . . . . . . . . 3' 1 America Canada . . . . . . . . . . . I -2 U.S.A. . . . . . . . . . . . 47 Bar' ados . . . . . . . . . . I -7 Costa Rica . . . . . . . . . . 3~o Dominican Republic . . . . . . . . 2'1 Grenada . . . . . . . . . . I ' I Guatemala . . . . . . . . . . I I -0 Mexico . . . . . . . . . . . 33-2 Nicaragua . . . . . . . . . . 21 '9 Panama . . . . . . . . . . 3-7 Puerto Rico . . . . . . . . . . 6-2 St. Lucia (includes accidents, suicides also) . . . . 29'9 Trinidad-Tobago . . . . . . . . . 4 ' 8 Argentina (includes accidents, suicides also) . . . . 46'I Brazil . . . . . . . . . . . Io-8 British Guiana . . . . . . . . . I '5

1. Based mainly on U.N. Demographic Survey (1962).

,»1mer-z'cr1----.cCv11ul.

Chile . . . . . . . . .

Colombia . . . . .

E(.'u€lLl01' r'_in.~l1.ulc< accidents, «;-Ln-Elli-x -.ils0* . UrL1«;_v11:1y , , . . . . .

A5111 .\llcn Burma . , ('.<:ylOn . _ , . , , _ , China (Taixxanl . . . .

Hang liong . _ _ _ , _ India Israel Qinclmles aecidems, $UlCldLS ulsm Japan jordan liorca North Borneo Philippines . , Ryukyu Islands . , Singapore _ _ , _ _ .

Europe Austria !, . . . . , Belgium . . . . .

Bulgaria , , , , _ Channel Islands Czechoslovakia . . . .

Denmark , . . . _ Finland , . _ .

France *.

Germany----Federal Republic of Germany Greece . , _ _ Hungary . _ . . . .

24-12 2 Law.

Rate per 1,oo.ooo of jmpz/latzwz {mﬁeil lmlia' :3).

0'9 2-6 on 'Crime in 1962, 369 1-7 I4- 58- C?

'J'l mu} page 354 ~» Rate per Eur0pe--c)I1td. 1,oo,ooo of population Iceland . . . . . . . . . . . 0'6 Ireland . . . . . . . . . . . 0'2 Italy . . . . . . . . . . . I '5 Luxemburg . . . . . . . . . . 0'9 Netherlands . . . . . . . . . . 0'4 Norway . . . . . . . . . . 0'4 Poland , , I-4 Portugal . . . . . . . . . . 1'4 Spain . . . . . . . . . . . 0-8 Sweden , , , , , 0-6 Switzerland _ _ , , _ , , , , . 0- 6 United Kingdom----England and Wales , , , _ , o-7 United Kingdom---Northern Ireland _ o'8 United Kingdom----Scotland , , , . . , , 0-5 Yuugoslavia . . _ , , _ , _ _ _ 62-6 Australia and New Zealand Australia . . . . . . . . . . x- 5 New Zealand . . . . . . . . . 1-x 355 APPENDIX XLIII INDIA-«ANALYSIS OF SENTENCES PASSED BY SESSIONS JUDGES IN CAPITAL CASES (IN CERTAIN STATES) (BASED ON SELECTED DECISIONS) Analysis for the period from 1957 to 1960 in re_»'j>u'f of 1)ca_t/z .S'c2zt_c;z:c, or Li/2 Imprisonment patted by the S€'X.\'207!S Courts In certain Stan': um! me dcczszmzs of 1/10 re.\'pectz-z'e High Court;

on appeal 1 re.

(Prepared on tI"e basis of certain reported decisions, and illustratrc or 13') State Sexsiorzs Court

1. Andhra Pradesh Death Senterce Life Imprisonment

2. Assam Li fe Imprisonment

3. Bihar (Patna) , Death Sentence Life Imprisonment

4. Bombay (Maharashtra) . Death Sentence Life Imprisonment Gujarat (I960) _ . Nil.

5. Kerala . . . Death Sentence Life Imprisonment

6. Madras . . . . Death Sentence Life Imprisonment High Court I4 ( 2 acquitted 3 life imp.

9 reduction of sen-

tence 8 f 5 acquitted { I conﬁrmed 2 reduction of sen-

ICYICC I H conﬁrmed 2 f I conﬁrmed 4 *1 altered to life im-

L prisonment S f 2 conﬁrmed W 3 reduction of sen-

L tence 2 2 changed to life imprisonment 4 { 3 conﬁrmed 4 I I-1 acquitted f conﬁrmed U) H changed to life imprisonment conﬁrmed ll! reduction 'hf sen-

tence __Jc____ _, ,--._Ju__, I-I L I acquitted 8 f 2 conﬁrmed T acquitted 5 changed to life im-

prisonment 4 1 conﬁrmed I reduction of sea-

ICDCC ,__.._..I%_.' ¢.__J& 2 acquitted

8. Punjab

9. Rajasthan IO. Uttat' Prade.sh

11. 'West Bengal 356 Sesxinzzs Cvztrt Life Impr..7s0nment Dwth Sentence Life Imprisottment Life Imprisonment Acqultted Death Sentence Life Imprisonment IIIZJI C our:

3 f 2 acquitted { I reduction L tcncc of sen-

I I altered to Imp.

I I conﬁrmed.

4 4 conﬁrmed.

2 2 Life Imprisonment 17 f 8 conﬁrmetl.

5 altered to Life Imp.

L 4 acquitted.

22 (I9 conﬁrmed.

1 I reducfon of sen-

{ tence. ' 2 acquitted.

'M9'I ZZI--GZ Sentence by Session: Court DETAILED ANALYSIS Sentence by High Court C. A. 468/54 .

C. A. 93/55

R. T. 31 and C.A. 289 to 291/56.

C. A. 499/54 -

C. A. 22/57 IR. T. 16/57

R. '1'. 1/57 R. T. 22/57 R. T. x4/57 . .

R. T. 22/S6 Death sentence Life Imprisonment Death sentence ANDHRA PRADESH I I 2 90 Life Imprisonment Acquitted A.I.R. I957 A.P. 2x3.

Altered to 3 years-- A.I.R. I957 R.I. A. P. 611 Acquitted A.I.R. 1957 A. P. 758 .

I A.I.R. 1957 A. P. 899. 3;'

-J R.I. for 3 years A.I.R. 1958 A. P. 37.

Reduced to IO years A.I.R. I958 R.I. A.P. 235.

2 Altered to L.I. A.I.R. I958 A.P. 255.

Altered to 7 years A.I.R. I958 R.I. A.P. 380.

Changed to 3 years A.I.R. I958 R.I. A.P. 273.

Altered to L.I. A.I.'R. I958 A.P. 203.

Sentence by Sessions Court Sentence by High 0014"

Death Sentence Life Imprisonment Death Sentence Life Imprisonment C. A. 409/58 . . . . .. 1 .. Acquitted A-I-K I960 A. P. :53.

C. A. 665158 . . . . .. I .. Acquitted A.I.R. I960 A.P. 490.

Death sentence: 14-2 acquitted Life Imp.----9 5 acquitted L.I. I conﬁrxned 9 reduction of sentence 2 reductxon of sen- ICIICC ASSAM C. A. 99/54 . . . . .. I .. I A-I-K I957 Assam 45.

Life Imprisonment I I conﬁrmed PATNA Death Ref. 9/56 . . . I Altered to Life Im- A.I.R. 1957 prisonment. Pat. 52.

Death Ref. I3/55 . . . I .. . . I A.I.R. 1957 Fat. 462.

C. A. 56/56 . . . .. I .. Reduced to 5 years A.I.R. 1958 R.I. Pat. 190.

C. A. 36zIs4 . . . .. 2 Ifralopuudon for .. Altered to 10 years A.I.R. 1958 his. R.I. Pat. I2.

C. A. 35156 . . . . .. I . . I A.I.R. 1959 Pat. 66.

898

C. A. 453/37 . .

Conf. use 2/56 with GA. 996/ 5 6 etc].

C. A. 459/56 .

C. A. 65/58

C. A. 99/56 . . .

C. A. 637/56 .

C. A. 12o/56 . . .

C. A. 415/56 . . .

C. A. 250/57 . .

o 1 . . I A.I.R. 1960* Pat. 62.

Death Sentence 2-- I conﬁrmed 1 altered to L.l.

Life Imp. 5 2 conﬁrmed

3 reduction of sentence Bonn! 2 .. 4 A.I.R. 1957 Bom. 226.

1 .. Acquitted A.I.R. 1958 Born. 439 1 .. x A.I.R. 1959 Bom. 463.

Death Sentence 2 f 2 changed to L.I. Life Imptisonmcnt4 3 confirmed I acquitted GUJARAT Nil.

KnAr.A 1 (R.I.) .. Reduced to 10 years A.I.R. 1957 R.I. Ker. 53.

I .. A.I.R. I957 Ker. 65.

I .. I A.I.R. 1957 Ker. I02.

I . . I A.I.R. 1957 Ker. 166.

.. I . . A.I.R. 1958 Ker. 207.

598

Sentence by Sessions Court Smzence by High Court Death Sentence Death Sentence Life Imprisonment Life Imprisonment C.A- 207/59 . . .

C.A. 311/58 . .

C.A. 577 and 638/55

C.A. 528/56 . , .

R.T. 123/56 . . .

I 1 I I (R.I.) 1 3 confirmed Death sentence 4 L1 R.1. for life (' 4 conﬁrmed ~ - I acquitted Life Impnsonment 7 { 2 reduction L of sentence MADRAS 2 (Tr . for life) Acquitted Altered to L.I, R.I. for 5 years under sec. 326 Acquitted Reduced to 5 years R.I. A.I.R. 1959 Ker. 46.

A. I. R. 1960 Ker. 24.

A. I. R. 1960 Ker. 149.

A.I.R. 1960 Ker 301.

A.I.R. 1960 3 Ker. I20. C A.I.R. 1957 Mad. 505.

A.I.R. 1957 Mad. 541.

A.I.R. 1957 Mad. 727.

T. I28/59 R.T. I2/60 C.A. 281/59 R.T. I38/59

R.T. C.A. 103/55 CA. 133/55 C.A. 44/56 C.A. 385/57 p Death Sentence 8 2 conﬁrmed I acquitted 3 changed to L.I. I conﬁrmed 1 reduction Life Imprisonment 4 [I of Sentence ORISSA I 1 I Life Imp. 3 PUNIAB L 2 acquitted 2 acquitted I reduction of L Sentence Altered to L.I. Altered to L.I. I acquitted Acquitted Acquitted Reduced to 7 years R.I. Altered to L1.

A.I.R. 1960 Mad. 362.

A.I.R. I960 Mad. 533.

A.I.R. 1960 Mad. 218.

A.I.R. I960 Mad. 370.

A.I.R. 1960 Mad. 443.

A.I.R_. I957 Orissa 216 A.I.R. 1958 Orissa 69.

A.I.R. I958 Orissa 113.

A.I.R. 1958 Punjab I04.

19'?

Sentence by Sessions Court Sentence by High Court C-A- 539/S8 C.A. 43/56 C.A. 63/54 C.A. 4o/Q C.A. 1164/5:} 30°/52 C.A. 917/56 916/56 C.A. I139/56 .

C.A. 677/56

Death Sentence Life Imprisonment Death Sentence Life Imprisonment I I A.IR 1959 Punjab 332.

Death Sentence 1 (altered to L I) L.I . I (conﬁrmed) RAJASTI-IAN 4 A.I.R. I968 Raj. 226.

A.I.R_. 1958 Ray. 338.

A.I.R. I960 Raj. 101.

895

(State appeal against (Transportation) acquittal) (State appeal against I acquittal) ALLAHABAD . . 2 .. 2 A.I.R. I957 A11. so.

A.I.R. I957 All. 177.

I . . . . Acquitted A.I.R 1957' A11. 184.

A.I.R. 1957 Acquitted All. 197.

C.A. C.A. C.A. C.A. C.A. C.A. C.A. C.A. C.A. C. A. C.A. C.A. C.A. C.A. 1.54.6/:5 I487/56 I424/56 .

293/55 873/56

I389/56 .

1375/57 424/57 496/57 687/58 864/58 IOIO/56 .

541/58 666/60

o Death sentence Life Imprisonment 27 WEST BENGAL Nil.

[ 8 conﬁrmed I7 452Ix:t1e;.ed to Life [4 acquitted ( 24 conﬁrmed I reduction of sentence [_ 2 acquitted Altered to L.I. Altered to L.I. Altered to L.I. Reduced to 5 years R.I. under s. 304 All. 223.

A.I.R. I960 All. 748.

S98 364 APPENDIX XLIV RECOMMENDATIONS FOR AMENDMENTS IN CERTAIN CENTRAL ACTS.

(1) The Code of Criminal Procedure, 1898.--A provision requiring reasons for imposing either sentence (of death or imprisonment for life) for an offence which is punishable with death or imprisonment for life in the alternative, should be inserted in the Code.' (2) Indian Penal Code.--Persons below 18 years of age at the time of commission of the offence should not be sentenced to death.' 1- Paragraphs 820-822 of the body of the Report.

2. Paragraphs 878 and 887 of the boiv of the Report, §MGI.'ND---TSS*I22 N1. Of LaW----3--9--197I.__.I8'oo.

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