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Death Reference No. 7 of 1960 and Criminal Appeal No. 624 of 1960, decided on 23rd November, 1960.
‑Mere absence of evidence as to any shouting or crying on part of deceased‑Does not make prosecution case impro bable‑Penal Code (XLV of 1860), S. 302.
A person may be in extreme fear, which may make him dumbfounded when a murderous attack is made on him and, therefore, in a murder case, the mere absence of any evidence of any shouting or crying on the part of the deceased does not make the prosecution case improbable.
‑Re‑appearing of accused on scene of occurrence almost immediately after commission of crime‑Not uncommon or unusual‑Penal Code (XLV of 1860), S. 302.
It is difficult to anticipate the springs of human action. A person who has just committed a murder has his nerves at an edge and he may act in a manner, which would appear strange to ordinary human beings in normal circumstances. Where, therefore, a person who had committed a murder, re‑appeared on the scene of occurrence almost immediately after the crime was committed, it was held, that there was nothing uncommon or unusual in the conduct of the accused.
‑Prosecution not bound to prove any motive for crime.
‑Accused a youthful person‑Principles to be followed in awarding extreme penalty.
When a murder has been committed by a youthful person whether or not the sentence of death should be awarded depends on the circumstances of each case. No definite norm' can be laid down and no yard‑stick can be forged which can be applied to every case when a question of commutation of death sentence has to be considered. However the following principles should be kept in view by the Court while awarding sentence to a person under section 302 of the Penal Code, 1860.
(i) The normal sentence in a conviction under section 302, Penal Code, 1860 is death.
(ii) In case of extreme youth, I.e. persons in their early or middle teens, youth itself is invariably a sufficient ground for commuting a sentence of death to transportation for life.
(iii) In very rare cases a youth in middle or later teens, is condemned to death. It is only in exceptional circumstances and in cases of extreme depravity that a teen‑ager is awarded a death sentence.
(iv) In other cases when a person is of a higher age but quite fn early youth, the question of his age alone is not sufficient to justify a commutation of the sentence, and the question, namely, the youth of the person is usually taken into consideration along with other extenuating circumstances in order to commute a sentence of death passed on such person.
(v) Every case has to be decided on its own particular facts and it is difficult to lay down in precise terms the exact limits of the principles, which would justify the awarding of the lesser sentence. Having regard to the facts and the circumstances of a particular case, if the Court feels that a sentence of death should not be executed, it is its duty to commute the sentence to transportation for life.
(vi) The High Court will not look at the discretion left to the Sessions Court to award the lesser sentence, from the point of view of mere clemency shown by it to the convict.
The sentence of death was altered to transportation for life.
Chit Tha v. Emperor 45 I C 840; Ghunnai v. Emperor A I R 1934 All. 132; Emperor v. Jasha Bewa 11 C W N 904; Harnamun v. Emperor A I R 1928 Lah. 855; Maghar Singh Nahar Singh and another v. Emperor A I R 1941 Lah. 220; Mi. Hein and another v. Emperor A I R 1933 Rang. 134 and Ghurey and another v. Rez A I R 1949 All. 342 ref.
‑Attention of accused not drawn to evidence that he had led to the discovery of the crime weapon‑Evidence of recovery, not relied upon Evidence Act (1 of 1872), S. 27.
Birendra Nath Chowdhury for Appellant.
Abdul Hye Chowdhury for the State.
‑Reference No. 7 of 1960 was made by Mr. A. S. Chowdhury, Sessions Judge, Dinajpur, under section 374 of the Code of Criminal Procedure, for confirmation of a sentence of death passed on one Tasiruddin, who is also an appellant to this Court, the appeal being numbered as Criminal Appeal No. 624 of 1960.
2. The reference has been heard by us together with the aforesaid appeal and this judgment will dispose of both of them.
3. Tasiruddin along with his brother, Mafizuddin, (who has not preferred any appeal) was tried by the aforesaid Sessions Judge, with the aid of Assessors on a charge under section 302 read along with section 34 of the Pakistan Penal Code. The co‑accused Mafizuddin was further charged under section 323 of the said Code.
4. Prosecution case, in substance, is as follows: On the 14th of Baishakh, 1367 B. S., corresponding to the 27th of April 1960, one Abbas Ali Sarkar (P. W. 2) and Masiruddin (deceased) were returning to their home from a bazar called Amdungi Hat. These two persons had a sort of mobile shops, which they used to carry from one bazar to another. They reached a place called Boaldanga field at about 8‑30 p.m. on the aforesaid date. Masir uddin was about three cubits ahead of P. W. 2 Abbas Ali Sarkar and they both had lanterns in their hands. At this juncture a rushing noise was heard and two men came out into the road from the field where upon Masiruddin shouted, "Who are you " Immediately two persons, namely, Tasiruddin (the condemned prisoner) and Mafizuddin, appeared. Tasiruddin immediately gave a blow with a Hashua (a sharp cutting instru ment of offence), which struck the lantern in the hand of Masiruddin and the same broke into pieces. Just when the lantern broke, P. W. 2 Abbas Ali Sarkar recognised the man to be Tasiruddin. He also recognised the other man, Mafizuddin, who had a lathi in his hand. Both these men were co‑villagers of P. W. 2 and known to him. Tasiruddin struck in quick succession several blows on the neck and other parts of the body of Masir uddin, who fell down and died instantaneously. P. W. 2 Abbas Ali Sarkar tried to intervene, but the said Tasiruddin struck him also with the Hashua and Mafizuddin also dealt a lath blow on his back. Another person appeared on the scene and broke the lantern of P. W. 2 Abbas Ali Sarkar.
5. P. W. 2 Abbas Ali Sarkar then fled away and proceeded across the field towards the house of P. W. 7. Dr. Sanauddin Ahmad, who was the Chairman of the Union Council. While running in that direction he was crying and shouting to the effect that the aforesaid two persons had murdered Masiruddin. On hearing the shouts of P. W. 2 Abbas Ali Sarkar, P. W. 7 Dr. Sanauddin Ahmad, P. W. 4 Abdur Rahman, P. W. 5 Majibar Rahman, P. W. 3 Abdul Gafur Sarkar and others hastened to the place of occurrence. P. W. 2 Abbas Ali Sarkar went with them to the spot and there were two lanterns with the party. They all found that Masiruddin was dead and that his body was lying in a pool of blood with numerous cut injuries on the neck and other parts of his body. The wearing apparel of the deceased was besmeared with blood. After a short while the condemned prisoner, Tasiruddin and his co‑accused Mafizuddin came to the place of occurrence and immediately there upon P. W. 2 Abbas Ali Sarkar pointed towards them and said that those two were the persons who had committed the murder. Some blood marks were found on the face of Tasirdddin and on the half‑shirt, which be was wearing at the moment.
6. In the meantime, P. W. 6 Nazir Hossain Sarkar, Ansar Commander, had arrived. He also heard about the occurrence, which was already narrated by P. W. 2 Abbas Ali Sarkar to the aforesaid witnesses. At the instance of P. W. 7 Dr. Sanauddin Ahmad both the appellant and Mafizuddin were arrested ant d taken to the Union Council Office and on the query of Dr. Sanauddin Ahmad, Tasiruddin confessed in the presence of the aforesaid witnesses that he had committed the murder because the deceased Masiruddin owed him a sum of Rs. 212 and did not repay the same.
7. Early in the morning of the 28th of April 1960, P. W. 6 Nazir Hossain proceeded towards the police station, which is at a distance of ten miles from the place of occurrence and lodged a first information report there at 8‑35 a.m. The investigating officer Immediately proceeded to the place of occurrence. He found the broken lantern. He also seized the wearing apparel of the deceased, which was besmeared with blood, and also seized various other alamats.
8. Shortly thereafter, in pursuance of a statement made by Tasiruddin, the investigating officer along with Dr. Sanauddin Ahmad was taken by the said Tasiruddin to a well, where with the help of a diver, a Hashua was taken out, which is an exhibit in this case. The broken lantern of P. W. 2 Abbas Ali Sarkar as well as the half‑shirt (with blood marks on it) of the con demned prisoner were seized by the police and, later, produced in Court.
9. Upon completion of investigation in this case, and a preliminary enquiry by a Magistrate of the First Class, the condemned prisoner Tasiruddin and his brother Mafizuddin were committed to the Court of Sessions to stand their trial on the aforesaid charges.
10. The Assessors were unanimously of opinion that the condemned prisoner Tasiruddin was guilty under section 302 of the Pakistan Penal Code simpliciter. They also found co‑accused Mafizuddin guilty under section 323 of the said Code and "not guilty" under section 302/34 of the Code.
11. Learned Sessions Judge, on an appraisal of the evidence as well as the facts and circumstances in this case, also came to the conclusion that the condemned prisoner, Tasiruddin, was guilty under section 302 of the Pakistan Penal Code. He, therefore, accepted the unanimous opinion given by the Assessors and accordingly convicted the condemned prisoner under the said section. The learned Sessions Judge also found that there was no extenuating circumstance in favour of the condemned prisoner. He, therefore, sentenced the said Tasiruddin to death. Hence this reference as well as the appeal before us.
12. At the hearing of this reference and appeal Mr. B. N. Chowdhury appeared before us on behalf of the condemned prisoner, the said Tasiruddin. He has taken us through the entire evidence and records of this case as well as the judgment pro nounced by the learned Sessions Judge. He has argued that the prosecution story given by P. W. 2 Abbas Ali Sarkar, who is the only eye‑witness to the occurrence, is improbable. He has next urged that the sentence passed of Tasiruddin should be commuted to one of transportation for life. No other argument was addressed before us.
13. Before we take up the points that were argued before us by the learned Advocate for the condemned prisoner and appellant, we would discuss the evidence in this case.
14. P. W. 2 Abbas Ali Sarkar is the only eye‑witness in this case. He has given evidence covering the entire prosecution case as set out above and we do not propose to repeat the same. In his cross‑examination this witness could not be shaken at all. On behalf of the defence a suggestion was made to this witness that there was a quarrel between him and Tasiruddin over the catching of fish. The suggestion has been emphatically denied by him and there is no basis for the same. It is quite clear that there is no reason as to why this witness should bear any ill‑feeling against Tasiruddin. He has given evidence in a straightforward and convincing manner and the same has a genuine ring of truth about it.
15. Mr. B. N. Chowdhury has argued that tie story given by him is improbable. Learned Advocate has argued that the very enquiry by the deceased Masiruddin as to who were the men that appeared in the scene postulates that he (the deceased) did not recognise them. It is urged, in these circumstances, that P. W. 2 Abbas Ali Sarkar, who was about 2/3 cubits behind him, could riot have possibly recognised Tasiruddin, more particularly because of the fact that he has himself admitted that he is slightly short sighted.
16. We may dispose of this argument by saying that the exclamation of the deceased challenging the persons attacking him does not necessarily mean that he was riot able to recognise them when so attacked. From the evidence it transpires that those two men appeared on the road from a field and they were challenged at a time when a rustling noise was heard. The deceased may not have seen them at an earlier stage when they emerged from the field and the exclamation could well have been an expression of surprise. Furthermore; the evidence of P. W. 2 Abbas Ali Sarkar on this point is that he had recognised the condemned prisoner Tasiruddin as well as Mafizuddin when the former struck a blow on the lantern of the deceased, At that time two lanterns were burning and there is no reason to disbelieve P. W. 2 Abbas Ali Sarkar when he stated that he had clearly recognised the aforesaid two persons who were his co‑villagers. He has frankly and candidly admitted that he is slightly short‑sighted, but he has stated that he does not find any difficulty in recognising known persons.
17. Mr. Chowdhury has further argued that there is no evidence in this case that the deceased cried out or set up any alarm on being assaulted. True, there is no evidence to this effect that the deceased cried out when the murderous assaults were inflicted on him. This, however, dries not make the prosecution story improbable. A person may be in extreme fear, which may make him dumbfounded. In any case, the mere absence of any evidence of any shouting or crying on the part of the deceased does not make the prosecution case improbable, argued by the learned Advocate that it would be a strange conduct on the part of Tasiruddin that he should re‑appear on the scene of occurrence shortly after the crime was committed, if he had been the actual assailant. The answer to this argument is, that it is difficult to anticipate the springs of human action. A person who has just committed a murder has his nerves at an edge and he may act in a manner, which would appear strange to ordinary human beings in normal circumstances. We agree with the observations of the learned Sessions Judge that there is nothing uncommon or unusual for criminals re‑appearing on the scene of their crime. Besides, Tasiruddin might have felt that his presence at the scene of occurrence might lead people to think that he could not be the actual perpetrator of the crime. All these considerations may explain his presence at the place of occurrence on the aforesaid night after the commission of the offence.
19. It was finally argued that there was absolutely no motive as to why Tasiruddin should murder the deceased Masiruddin. It is true that there is no direct evidence of enmity or ill‑feeling on the part of Tasiruddin against the deceased; but the prosecu tion is not bound to prove any motive for the crime. Evidence has been led to the effect that the brother of Tasiruddin, namely, Mafizuddin, had at one time abducted the second wife of the deceased and that she was subsequently rescued with the assistance of Ansars of the village. This directly concerns Mafizuddin and the prosecution has not attempted to put forward any specific motive on the part of Tasiruddin for the commission, of the aforesaid crime. We are not prepared to discredit the evidence of P. W. 2 Abbas Ali Sarkar because no motive has been suggested by the prosecution, which directly and specifically involves Tasiruddin. In any event, we cannot eliminate the possibility of Tasiruddin being a too' in the hands of his elder brother and co -accused, Mafizuddin. We have analysed the evidence of P. W. 2 Abbas Ali Sarkar and it appears to us that he has spoken the truth. His evidence impressed the trial Court and it has also impressed us. Therefore, we accept his evidence.
The most important witness, who has substantially corro borated the evidence of P. W. 2 Abbas Ali Sarkar, is P. W. 7 Dr. Sanauddin Ahmad. He is a medical practitioner and the Chairman of the Union Council, we shall quote his evidence which is as follows: ‑
I am a private medical practitioner at Shibnagar Police Station Parbatipur and Chairman, Shibnagar Union Council.
"On Wednesday, 14th 'Baisakh', 1367 B. S. I heard alarms at about 8‑30 p.m. from the direction of Boaldanga field on the west and ran towards that field. On the way I met Abdur Rahman, Abdul Gafur, Majibur Rahman and a few others. We had one or two lanterns with us. We came across P. W. Abbas Ali who was running towards the village shouting, crying and wailing. He told us that accused Tasiruddin being accompanied by Mafizuddin murdered Masiruddin by giving him numerous stabbing blows with a hashua' and both, Tasiruddin and Mafizuddin assaulted him with a hashua' and lathi' respectively.
We hastened to the spot in the Boaldanga field and found Masiruddin lying dead with profuse bleeding from numereous cut wounds. Exhs. II to X were lying near the dead‑body.
Shortly after that Tasiruddin and Mafizuddin went there and Abbas Ali immediately shouted out saying that these very men murdered Masiruddin and yet they brazen‑facedly came to show their faces there. I saw blood on the hands and face of Tasiruddin as also on his wearing half‑shirt, this half shirt is Exh. XIV.
I asked those present there to arrest both the accused and they arrested them.
I then noticed a cut injury in a left finger of accused Tasiruddin. Then to the spot the local Ansar Commander Nazir Hossain. Abbas again narrated the occurrence to him stating specifically that Masiruddin was stabbed to death by accused Tasiruddin and both the accused also assaulted him. The two accused are there (identified).
We took the accused to the office of the Union Council and on my interrogation he admitted that he killed Masiruddin by stabbing him with a hashau as the latter having taken an oral loan of Rs. 212 from him, refused to repay the same and denied having taken the loan.
Previously accused Mafizuddin abducted 2nd wife of Masir undin, who was recovered and rescued by the latter with the help of Ansar Commander.
Ansar Commander Nazir Hossain was sent to Parbatipur Police‑station to lodge F. I. R. and arrangement was made for guarding the dead‑body. I medically examined accused Tasiruddin and found on his person
(1) One cut mark on the 4th finger of the left hand 1 " x .
(2) One cut mark at the side of the ring finger of the left hand " x 1/8'.
Both were caused by some sharp weapon and simple. The injuries were 3/4 hours old. That was at about mid‑night.
The injured told me that the deceased tried to catch hold of the 'hashua' and at that time he (the injured) sustained the injuries.
I examined Abbas Ali and found
(1) One cut mark on the upper side of the middle finger of the left hand 2 " x deep caused by a sharp weapon such as 'hashua'.
(2) One ecchymosis on the right shoulder caused by a blunt weapon such as 'lathi'.
"Daroga went to the locality next morning and held inquest on the dead‑body for forwarding it to Dinajpur morgue for post‑mortem examination. He seized this hurricane Exh. 11 and this blood‑stained earth Exh. XVI by preparing this seizure list in my presence Exh. 2. He seized the other 'alamats' lying on the spot under this seizure list, prepared in my presence Exh. 3. This half‑shirt blood‑stained Exh. XV was seized by him under this seizure list Exh. 4".
"Daroga arrested the accused formally and took them into custody. Accused Tasiruddin made a statement to him and led him to a well the east of his house belonging to one Asiran Bibi. Where one man got down and diving in the water brought out this 'hashua' Exh. 1. The well was pointed out by accused Tasiruddin where upon that man was sent down into the well to recover the 'hashua' and he did it. That man was a stranger. None of the neighbourhood was expert in diving. Hence, he was selected for the job. The Daroga (O. C) seized the 'hashua' by preparing this seizure list Exh. 5 in presence of witnesses including myself."
He denied in cross‑examination that Tasiruddin did not make any statement to him. He also stated that both Tasiruddin and Mafizuddin were servants of two of his brothers. Dr. Sanauddin Ahmad is a respectable and independent witness. We have no hesitation in accepting his evidence. Incidentally we may mention that the injuries found by Dr. Sanauddin Ahmad on the person of P. W. 2 Abbas Ali Sarkar corroborate the evidence that Mafizuddin also struck a lathi blow on P. W. 2 Abbas Ali Sarkar when he attempted to intervene in the assault on the deceased.
20. Similarly, P. W. 3 Abdul Gafur Sarkar a teacher of a Model Primary School, P. W. 4 Abdur Rahman, P. W. 5 Majibar Rahman and P. W. 6 Nazir Hossain Sarkar have fully corro borated the aforesaid evidence. They are also respectable witnesses and no suggestion was put to them in the cross -examination directed on behalf of the defence as to why these people should bear any ill‑feeling against Tasiruddin or give false evidence against him. It appears that there has been hardly any challenge to their evidence in the trial Court. Even before us, Mr. Chowdhury did not attempt to impeach the credit of the aforesaid witnesses. We, therefore, accept their evidence.
21. Mr. Chowdhury has strenuously urged that we should not place any reliance on the evidence of P. W. 7 Dr. Sanauddin Ahmad to the effect that the condemned prisoner, Tasiruddin, stated to him that he (Tasiruddin) committed the murder, because the deceased did not repay a loan of Rs. 212 given by him to the deceased. Learned Advocate has asked us to reject this part of the evidence of Dr. Sanauddin Ahmad because of the following reasons : (a) because the alleged statement is an extra- judicial confession ; (b) because it is retracted ; (c) because admittedly it was made in the presence of persons who were men of superior status and authority and whose very presence must have created a sense of compulsion in the mind of Tasiruddin ; (d) because it is not known what question or questions were put to Tasiruddin and because neither the alleged statement nor any question put to him was recorded by Dr. Sanauddin Ahmad (e) because of the presence of Tasiruddin's elder brother and co- accused Mafizuddin who had obviously used him as a tool and instrument for his nefarious purpose ; (f) because the motive for the crime alleged to have been given by Tasiruddin, namely, non‑payment of the loan advance to the deceased is a very thin story and unworthy of credit.
22. Although it is difficult to disbelieve P. W. 7 Dr. Sanauddin Ahmad on this point, we think that it is safer not to take into consideration the alleged confession made by Tasiruddin because of the reasons stated above, and more particularly, because the motive for the crime alleged to have been given by him does not appear to be convincing. Whatever might be the motive for the crime, we do not think that non‑payment of a loan had provided such motive. A sum of over Rs. 200 is quite a big amount of money for a domestic servant in a modest village household. The possession of such an amount of money by Tasiruddin is a doubtful proposition and it is still more difficult to believe that such amount was advanced by him as a loan. Besides, the death of the borrower would completely extinguish all possibility of realising the money alleged to have been given to the deceased. The only person who stands to gain by the death of the deceased is the co‑accused and elder brother of Tasiruddin, namely, Mafizuddin, who covets the second wife of the deceased. The trial Court has not used the alleged confession against the condemned prisoner. We will not also rely on such alleged confession.
23. Mr. Chowdhury has further contended that the evidence to the effect that a statement by the condemned prisoner led to the discovery of a hashua from a well pointed out by him should also be ruled out of oar consideration because the attention of the prisoner was not drawn to this evidence in his examination under section 342 of the Code of Criminal Procedure. This contention must be upheld and we will not use this evidence against the prisoner.
It now remains for us to consider the medical evidence in this case, which has been given by P. W. 1. Dr. M. A. Jabbar. It is quoted hereunder: ‑
"On 29th April 1960, at 10 a.m. I held post‑mortem exami nation on the body of Masiruddin brought and identified by constable No. 24 Sk. Shahabuddin and No. 170 Jharu Miah, and found the following:
(1) Incised wound 6" x 1" x muscles running forwards from the nape of the neck, right side, cutting the lobule of right ear and going deep into the mastoid portion of the right temporal bone.
(2) One incised wound 3" x 1" x muscles on the back of the upper part of the neck.
(3) One incised wound 7" x 4" (gaping) on the inner part of the right shoulder, going deep cutting all the soft parts the clavicle of the right side, this vertibral column at the level of the 7th carvical vertibrae.
(4) Two incised wound 2" x " scalp deep each, oblique in position running down forwards and outwards on the left side of the occipital region.
(5) An incised looking wound 2" x 1"' x scalp on the front and upper part of the left parietal region with depressed fracture of the bone under neath.
(6) An incised wound levelling on the front of the right thumb cutting the soft parts and bone.
Death, in my opinion, was due to the above injuries which were ante‑mortem and homicidal in nature.
The body was partially decomposed. Other organs except those mentioned were healthy and intact but for slight decom position. The injuries were sufficient to cause death.
The injuries might be caused by this hashua' (a kind of curved duo) Exh. I"
24. Thus even if we eliminate, out of our consideration, the alleged confession of the condemned prisoner as well as the discovery of a hashua from a well pointed out by him, the rest of the evidence conclusively establishes that the injuries inflicted by the prisoner, Tasiruddin, caused the death of the deceased. The medical evidence quoted above leads to the only inference that Tasiruddin intended to cause such death.
25. The aforesaid evidence discussed, leads us to only conclusion on that Tasiruddin was guilty under section 302 of the Pakistan Penal Code.
26. Before we proceed to consider the next important point urged before us we would like to make a passing reference to one aspect of this case, which has not been considered in the Court below. The impression that we have taken of this case is that the prime mover of the crime that has been committed is the elder brother of the condemned prisoner, namely, his co‑accused Mafizuddin, who has preferred no appeal from a sentence of six months' rigorous imprisonment imposed upon him under section 323 of the Penal Code. Learned Sessions Judge has come to the finding that the evidence in this case does not justify his conviction under section 302/34 of the Code. He has, however, committed to consider the question whether the said Mafizuddin committed an offence under section 302/109 of the Penal Code for having abetted the murder of the deceased for which the condemned prisoner has been convicted under section 302 of the Code. There are materials in the evidence of this case, which calls for such a consideration. However, in view of the steps we propose to take in this behalf, we refrain from discussing this view of the case any further.
27. We shall now consider the question of sentence, which has been passed on the condemned prisoner. Mr. Chowdhury has contended that the lesser sentence, namely, transportation for life, should be awarded to the condemned prisoner because of his early youth and also because it would appear from the evidence in this case that the condemned prisoner was a mere instrument of his clever and astute elder brother, Mafizuddin. On this point Mr. Chowdhury has further urged for our consideration the fact that there is a complete lack of motive on the part of Tasiruddin for the murderous assaults on the deceased. Mr Chowdhury then referred to the following portion of the evidence of P. W. 2 Abbas Ali Sarkar: ‑
"Aphila was 2nd wife of the deceased. Accused Mafizuddin had illicit connection with her. He abducted the woman who was later rescued by the deceased with the help of the Ansar Commander".
The above evidence has also been corroborated by P. W. 7 Dr. Sanauddin Ahmad.
28. We have given our most anxious consideration to the question of the sentence that was passed on the condemned prisoner. A long series of decisions of various Courts of the subcontinent of India and Pakistan have discussed the principles, which govern such a question. We shall, however, discuss only some of them in order to re‑state those principles inasmuch as strong and opposite views are often expressed at the Bar and occasionally by Courts below us.
29. In the case of Chit Tha v. Emperor (45 I C 840), in a Division Bench of the Lower Burma Chief Court, Sir Daniel Twomey, C. J. and Ormond, J. have observed as follows :‑
"As to the general principle, we are of opinion that ordinarily youth is in itself an extenuating circumstance in murder cases as in other criminal cases, we refrain from laying down that the lesser penalty should be awarded in every murder case where the accused is below a certain age. Cases of extreme depravity do occur in which the youth of the accused may not be a sufficient reason for imposing the lesser sentence. But the youth of the criminal is a circumstance, which should always be taken into account by Sessions Court in exercising the discretion vested in them by section 302 of the Indian Penal Code. We respectfully dissent from the view suggested in Nga Pyan's case that a Sessions Court, which on the ground of the criminal's youth imposes on him the lesser sentence provided in section 302, is thereby encroaching on the ‑prerogative of the Crown.
Having regard to the youth of the present appellant and the circumstances of the case we consider that the sentence passed on him may properly be reduced to one of transportation for life and it is reduced according".
30. In the case of Ghunnai v. Emperor (A I R 1934 All. 132), in a Division Bench of the Allahabad High Court, Young C. J. has observed as follows: -
"The case for the Crown has been clearly proved. The learned Judge was correct when he said that it was an inhuman and horrible murder perpetrated in cold blood. We have however seen the appellant in Court. His age is given officially as 18. We have little doubt from his appearance that he is considerably younger. We think that his age is probably 15 or 16. Under these circumstances we do not think that we ought to confirm the sentence of death. In our opinion, however horrible the crime, a boy of his age should not be hanged. At the age 15 or 16 when a boy has just come to the age of puberty, he may do many things than which he would never dream of doing when he was older. It is even possible that he may become a useful citizen."
31. In the case of the Emperor v. Jasha Bewa (11 C W N 904) in a Division Bench of the Calcutta High Court Rampini and Gupta, JJ have observed as follows: ‑‑
"There now remains the question of sentence. There is no doubt that the accused has murdered her husband in deliberate manner. She admits that sae administered a whitish powder to him; and she knew very well that it would kill him. She also admits that she obtained the powder from a neighbour named Ali, who, she says, told her that if she gave it to her husband, he would die and that he, Ali, would then marry her after the nika form. In these circumstances the offence committed by the accused cannot be regarded as anything less than murder, and it was, as already pointed out, ‑a very deliberate murder. Had the accused been of more mature age, we should have thought it our duty to pass on her the sentence of death. But, having regard to the fact that she is a mere girl of 16 years of age, we will not sentence her to the extreme penalty of the law but will direct that she be transported for life, and we accordingly do so."
32. Shadi Lal, C. J., in a decision of a Division Bench of the Lahore High Court, namely, the case of Harnamun v. Emperor (A I R 1928 Lah. 855) has expressed the following opinion: ‑
"The question of sentence, however, requires careful consi deration. On the one hand we have the facts that the prisoner is responsible directly for the murder of Mst. Amar Kaur and constructively for that of Narain Singh, and that the double murder was committed after premeditation and in cold blood. On the other hand, the medical evidence shows that he is a boy of about 17 years of age. I am not prepared to assent to the proposition that youth alone constitutes such an extenuating circumstance as would justify the imposition of the lesser penalty prescribed by the law. We have, however, In this case, the additional circumstance that the prisoner had no personal enmity with either of the victims that he was probably a tool in the hands of their enemies like Kartar Singh who has been acquitted by the learned Sessions Judge. Having regard to all the relevant circumstances I am of opinion that the extreme penalty of the law should not be exacted in this case. I, accordingly, accept the appeal so far as to reduce the sentence of death to one of transportation for life.
33. Again in a Division Bench of the Lahore High Court in the case of Maghar Singh Nahar Singh and another v. Emperor (A I R 1941 La h. 220), Young, C. J. has expressed himself in the following terms: ‑
"The learned Sessions Judge also says that there are several decisions of this Court which say that youth alone is no ground for giving the lower penalty. This is stating the law much too broadly. Youth, undoubtedly in some cases may be a very excellent ground for giving the lower sentence. It is a very rare thing for this Court to sentence a youth of 17 or below to death. It would only be in a very exceptional case that this would be done. In fact, the normal sentence for a youth of this age would be transportation for life. A very strong case, indeed, would have to be made out in order to justify the hanging of a youth of this age. When a youth of this age commits a murder in company with an elder relative that is another excellent reason for giving only transportation for life. We must therefore accept the appeal of Maghar as regards his sentence. We set aside the sentence of death passed upon him and impose instead a sentence of transportation for life; other wise the appeal is dismissed."
34. In the case of Mi. Hein and another v. Emperor (A I R 1933 Rang, 134), in a Division Bench of the Rangoon High Court, Brown, J. has expressed himself thus: ‑
" . . . . . . . the only question for consideration is that of sentence. He gives his age as 18, and that apparently has been accepted by the Sessions Judge, who has not taken any medical evidence on the point. He has been convicted almost entirely on his own confession, and according to that confession he was acting under instructions from, and semi compulsion by, his elder brother, who was the prime mover in the affair and who alone would benefit from the murder. In these circumstances and in view of his youth I think there is sufficient reason for not inflicting the extreme penalty in his case. I would allow the appeal of Mi. Hein and direct that she be acquitted and released so far as this case is concerned. I would confirm the conviction of Pa Three but reduced the sentence in his case to one of transportation for life."
35. In the case of Ghurey and another v. Rez (A I R 1949 All. 342), the learned Judges of a Division Bench of the Allahabad High Court have observed as follows: -
"As regards the sentence, we think that the lesser sentence provided by law would be sufficient to meet the ends of justice. We are led to this conclusion by several factors. The appellants are very young in age. Pararu is aged twenty and Ghurey is twenty‑five. The enmity with the deceased was not with the applicants in particular but with Panaru's father Dayal. It is quite possible that the appellants may have attacked Sukhdeo under the influence of Dayal. Then again, as we have already observed, we cannot hold that the appellants intended to cause the death of the deceased. In the circumstances we think that both the appellants should be awarded the sentence of trans portation for life."
36. On this point, there are quite a large number of deci sions, which we have considered, but not quoted here. It seems to us that the principles, which are well‑settled can be stated thus: ‑
(i) The normal sentence in a conviction under section 302 of the Penal Code is death.
(ii) In case of extreme youth, namely, of persons in their early or middle teens, youth itself is invariably a sufficient ground for commuting a sentence of death to transportation E for life.
(iii) In very rare cases a youth in middle or later teens, is condemned to death. It is only in exceptional circumstance and in cases of extreme depravity that a teen‑ager is awarded a death sentence.
(iv) In other cases when a person is of a higher age but quite in early youth, the question of his age alone is not sufficient to justify a commutation of the sentence, and the question, namely, the youth of the person is usually taken into considera tion along with other extenuating circumstances in order to commute a sentence of death passed on such a person.
(v) Each case has to be decided on its own particular facts and it is difficult to lay down in precise terms the exact limits of the principles, which would justify the awarding of the lesser sentence. Having regard to the facts and circumstances of a particular case, if the Court feels that a sentence of death should not be executed, it is its duty to commute the sentence to transportation for life.
(vi) We may add that we, ourselves do not look at the discre tion left to Court to award the lesser sentence, from the point of view of mere clemency shown by it to the prisoner."
37. In the present case, it transpires from the record of the Committing Court that the brother and co‑accused of the condemned prisoner, namely, Mafizuddin, is older in age. The age of the condemned prisoner has been given as twenty‑three by the learned Sessions Judge. Learned Advocate has submitted that, in fact, he is still younger in age. In any event, it is safe to conclude that the prisoner is quite in his early twenties. The prisoner is not of a very tender age, but he is certainly very young. But the following facts stare us in the face.
38. It is obvious from the conduct of this prisoner as disclosed in the evidence of this case that he is not very matured in mind and certainly not snore mature than an average youth in late teens. We have already stated that we have formed the opinion that the condemned prisoner Tasiruddin was a mere tool in the hands of his astute elder brother, Mafizuddin. There is a lack of any personal motive on the part of the condemned prisoner for the commission of the crime, and it is evident that the person who stands to profit by the death of the deceased Masiruddin is the elder brother, Mafizuddin, who has been let off with a light sentence of rigorous imprisonment for a period of six months on a lesser offence. Taking all these facts into consideration along with the youth of the prisoner, we feel that the sentence of death imposed on him should not be allowed to be executed in this case.
39. We would like to make it clear that we are not laying down any precedent in this case. We have already indicated that no definite norm' can be laid down and no yard‑stick can be forged, which can be applied to every case when a question of commutation of death sentence has to be considered. We repeat that each case must be decided on its particular facts. We have noticed the cases cited above merely to re‑state the principles enunciated in them.
40. We, therefore, for the reasons indicated above, alter the sentence of death passed on the prisoner, Tasiruddin, to trans portation for life and with this alteration and commutation of the sentence as stated above, the reference is rejected; the appeal is also otherwise dismissed.
K. B. A.
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