NRJ Series | When SC commuted death sentence to transportation for life after finding High Court’s confirmation to be based on subjective feelings and not positive evidence [(1954) 2 SCC 227]

Supreme Court: In a case wherein appellant was convicted of committing murder of a person named Kewal on 23-07-1941, the 3-Judges Bench of Vivian Bose, N.H. Bhagwati*, and B. Jagannadhadas, JJ., held that while imposing death sentence, the Allahabad High Court (‘the High Court’) should have considered factum of such long lapse of time, around 12 years, and consequent inability of appellant to prove by any cogent evidence circumstances under which alleged act was committed by him. The Supreme Court opined that three witnesses were already dead by the time trial commenced and it was not possible to know whether there was any altercation between appellant and Kewal at time offence was committed. Therefore, the Supreme Court confirmed appellant’s conviction under Section 302¹ of the Penal Code, 1860 (‘IPC’) but reduced the sentence passed upon appellant from that of death to one of transportation for life.

Background

It was stated that appellant was surprised by Kewal, who committed an unnatural offence against Maiku in the cattle shed of Thakur Bhan Pratap Singh, who was appellant’s and Kewal’s employer. Maiku caught hold of Kewal, while appellant hacked him to death with an axe, as a result which Kewal’s elder brother Sukhey came to the spot after hearing Kewal’s cries. Jhungru also came there and both Sukhey and Jhungru saw appellant hacking Kewal to death. Thereafter, appellant ran away and when he was running away, he encountered Sumer and Ghasi and so he delivered a blow on Sumer’s neck with the axe and attempted to attack Ghasi.

The first information of the offence was given by Misri, and the investigation was held but appellant was not found in the village and on 04-09-1941, the Sub-Inspector submitted a report. The post-mortem on Kewal’s dead body was conducted and the bloodstained axe was handed over to the Sub-Inspector who sealed it in a packet, prepared its recovery list and sent it to the Sadar Malkhana at Bareilly. As there was no immediate prospect of arresting appellant, the Magistrate First Class, and Sub-Divisional Magistrate, Faridpur recorded the depositions of witnesses and the record of these proceedings along with all the original documents were consigned to the Collectorate Record Room at Bareilly while the axe was kept in the Sadar Malkhana at Bareilly.

In 1942, a fire broke out in the Record Room of the Collectorate, due to which many records and registers were destroyed and thus, the record of the proceedings became not traceable. In 1948, the entry pertaining to appellant in the register of proclaimed absconded offenders, maintained in the office of the prosecuting Inspector, was expunged under orders of the District Magistrate and the axe kept in deposit in the Sadar Malkhana was returned to the police station for destruction. Appellant surrendered himself before the Magistrate in July 1952, when the charge under Section 302 of IPC against him was enquired into and he was committed to the Sessions Court for his trial on the charge of having committed Kewal’s murder.

Appellant pleaded not guilty and denied having murdered Kewal and contended that he had been falsely implicated in the case on account of enmity and the influence of Thakur Bhan Pratap Singh. He also contended that he had gone to Calcutta a year before the alleged murder.

Due to lapse of time, the alleged eyewitnesses of the murder were no longer available as they had died around 4-5 years before the trial took place and the only eyewitnesses that were available were Sukhey and Jhungru. Ghasi was a witness to the latter part of the incident, that is, the attempt of Sumer-one of the eyewitnesses and Ghasi to arrest appellant, an attempt in which Sumer received the axe injury on his neck.

As far as the documents were concerned, that is, the FIR, the general diary in which an entry pertaining to the FIR was made, the inquest report, the post-mortem report and the statements of Sukhey and Jhungru recorded were missing and thus, the Sessions Judge regarding the admissibility of secondary evidence of these documents, concluded that these documents had been proved to be missing, that secondary evidence of the FIR, of the entry made in the general diary, of the inquest report and of the statements of Sukhey and Jhungru were available and admitted the same in evidence against appellant.

The Sessions Judge however held that even if the copy of the post-mortem report was excluded, there was convincing evidence that Kewal had received incised wounds inflicted by an axe because of which he died almost immediately. The oral evidence of Sukhey and Jhungru corroborated as it was by the evidence of Ghasi and the copies of the original documents was held sufficient by the Sessions Judge to establish appellant’s guilt. Thus, the Sessions Judge convicted appellant of the offence under Section 302 of IPC and awarded to him the maximum sentence of death provided under the law, subject of course to confirmation by the High Court. The High Court agreed with the Sessions Judge and confirmed the conviction, and the sentence passed upon appellant. Thereafter, appellant applied for and obtained from this Court special leave under Article 136 of the Constitution and hence the present appeal was filed.

Analysis, Law, and Decision

The Supreme Court did not agree with the contention that it would not be safe to convict appellant only on the testimony of one independent witness. The Supreme Court stated that Sukhey’s evidence was corroborated by Jhungru and Ghasi was another independent witness who deposed to the incident which happened when Sumer and Ghasi attempted to arrest appellant while he was running away from the cattle shed. The Supreme Court opined that the evidence of these witnesses was sufficient to sustain appellant’s conviction and thus, there was not any substantial ground for interfering with the finding of fact regarding appellant’s guilt arrived at by both the courts below.

The Supreme Court opined that the High Court was carried away by its moral indignation against appellant’s immoral conduct and went to the length of observing that the State had no use for such immoral persons and therefore appellant fully deserved the sentence of death passed upon him.

The Supreme Court stated that even though there was no positive evidence as regards the immorality of appellant, that fact merely resting in the allegations made by Sukhey and Jhungru regarding the motive for the perpetration of the offence. There was further circumstance of the trial of appellant having taken place almost 12 years after the incident and the High Court could have taken into consideration the fact that after the lapse of such a long time it would be really difficult if not impossible for appellant to prove by any cogent evidence the circumstances under which the offence came to be committed by him.

The Supreme Court stated that three of the eyewitnesses were dead by the time the trial commenced, and it was not known if there was any altercation between appellant and Kewal at the time when the offence took place. The Supreme Court opined that it would have met the ends of justice if the High Court had while confirming appellant’s conviction meted out to him the lesser penalty, that is, transportation for life instead of confirming the sentence of death as it did by reason of the moral indignation it felt against the character of appellant.

The Supreme Court dismissed the appeal, confirmed appellant’s conviction under Section 302 of IPC but reduced the sentence passed upon appellant from that of death to one of transportation for life.

[Radhey v. State of U.P., (1954) 2 SCC 227, decided on 05-08-1954]

*Judgment authored by: Justice N.H. Bhagwati

Advocates who appeared in this case :

For the Appellant: B.B. Nanak Chand, Advocate, for the Appellant;

For the Respondent: C.P. Lal, Advocate, for the Respondent.

**Note: Commutation of Sentence

Commutation of sentence changes the nature of the punishment and converts it into a less severe form of punishment. Commutation of death sentence raises an issue regarding the basic human rights of the accused and on the other hand, the impact of the grave crime on the society. Section 433² of the Criminal Procedure Code, 1973 (‘CrPC’) gives power to the government to commute the death sentence to a simpler sentence. Section 433-A³ of CrPC puts a restriction on the power of the President and the Governor that they cannot commute death sentence to less than 14 years of life imprisonment.

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