Skip to content


State of Maharashtra Vs. Gourishankar Kawadu Shende - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberApplication No. 45 of 1965
Judge
Reported inAIR1966Bom179; (1966)68BOMLR236; 1966CriLJ875; ILR1966Bom495; 1966MhLJ97
ActsIndian Penal Code (IPC), 1860 - Sections 84 and 302; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 367, 367(5) and 439(1)
AppellantState of Maharashtra
RespondentGourishankar Kawadu Shende
Appellant AdvocateC.S. Dharmadhikari, Asstt. Govt. Pleader
Respondent AdvocateD.N. Kamlakar, Adv.
Excerpt:
criminal - sentence - sections 84 and 302 of indian penal code, 1860 and sections 367, 367 (5) and 439 (1) of criminal procedure code, 1898 - application under section 439 by state that sentence of life imprisonment be altered to death sentence - facts revealed accused had suggested his wife to earn money by immoral means - on her refusal accused murdered her - manner in which death was caused was cruel and barbarous - except in cases where there were extenuating circumstances normal punishment for offence of murder under section 302 was death - in absence of extenuating circumstances sentence of life imprisonment was altered to death sentence. - - the learned sessions judge also held that the failure on the part of the prosecution to show the exact circumstances which should weigh.....wagle, j. (1) this is an application under section 439 of the criminal procedure code by state praying that the sentences of imprisonment for life imposed on accused gourishankar be altered to sentence of death. (2) the accused was married to the deceased some time in 1950, and the families of both, resided in pul-file at wardha after marriage, the deceased lived with the accused till about the beginning, of 1964, during which period, she gave birth to four children. the eldest amongst them is aged about eleven years, and the youngest is about three years old. the prosecution case is that the accuser's financial circumstances deteriorated by about 1963, and he began to suggest to housewife that she should earn money by immoral means. in other words, the suggestion made by the accused was.....
Judgment:

Wagle, J.

(1) This is an application under section 439 of the Criminal procedure code by state praying that the sentences of imprisonment for life imposed on accused Gourishankar be altered to sentence of death.

(2) The accused was married to the deceased some time in 1950, and the families of both, resided in Pul-file at Wardha after marriage, the deceased lived with the accused till about the beginning, of 1964, during which period, she gave birth to four children. The eldest amongst them is aged about eleven years, and the youngest is about three years old. The prosecution case is that the accuser's financial circumstances deteriorated by about 1963, and he began to suggest to housewife that she should earn money by immoral means. In other words, the suggestion made by the accused was that the she should sell herself for money and provide the means of livelihood for the family. The prosecution case further is that the deceased was unwilling to do so and, ultimately, by about March, 1964, she left the house of her husband along with her four children and comet reside with her brother sadhu who lived across the street. During the period from March to June 1964, the accused used to pay visits to sadhu's house and see his wife.

(4) While this was happening, one Nana (P.W. 2) recent recruit to the police constabulary, ran to the rescue of Anusuya and caught hold of the accused from behind. The accused, however gave a push with the elbow and Nana fell back. Nana again attempted to rescuer Anusuya but ultimately, he fell down, feeling a little giddy. While this was happening Kesheo [P.W. 5]the police constable on duty in the Bazar, come there running and caught hold of the hand of the accused which held the knife. He then whistled, and two other police constables, including Narayan [P.W.6] came there. Kesheo [P.W.5] hand over the accused to Narayan [P.W.6] and one other constable, so that the should and no escape. It was then discovered that Anusuya has died. The dead body of Anusuya was therefore sent to the hospital, and upon post marten, a number of injuries were founds on her body, particularly the abdomen. The accused was arrested during the course of investigation, and after the investigation was complete he was sent up for trial and the Magistrate committed him to the court of session. Accused denied the charge.

(5) Before the court of Session, the prosecution, examined panchafula [P.W. 1] - the wife of decease's brothers Anjani [P.W. 4] - the wife of another brother, Nana [P.W. 2] - a police constable and Ramrao [P.W.3] - an independent witness present in this bazar, as the persons who had actually witnessed the incident of the accused delivering the blows on the deceased. The prosecution also examined Kesheo [P.W. 5] as the policeman on duty who had apprehended the accused red- handed and blood - stained clothes on his body. The prosecution also examined P.W. 6 Narayan, who had taken the accused to the police station and who had filed first - information - resort Exh.11. Dr. Humane [P.W.8] was examined to prove the post - marten notes and the first result of his examination leading to the death of Anusuaya. The case for the prosecution was that probably, being dissatisfied with the decision of his wife in refusing his reset to lead onto immoral life and bring further dissatisfied with the his wife of for having deserted him, the accused rushed at the decades and caused her death intentionally. The even witnesses evidence to was believed by the learned sessions judo to hold that the prosecution had instantaneously resulted I the death of Anusuya. Relying upon the evidences of the medical officer Dr.Humane [P.W/ 8] the learned sessions judge come to the conclusion of that the injuries, which were causes to the deceased, were sufficient, in the ordinary course of nature, to causes death and that therefor the prosecution proved it case that the accused had murdered his wife anusuya on June 14, 1964, at about 4 P.W.

(6) The learned session judge thereafter considered the circumstances, which were obtainable in this case, in the matter of the exercise of his discretion in regard to the sentences. The learned sessions judge come to the conclusion to and that the evidence was irresistible to lead to an inference that the mind of he accused was far from normal and hence, he indulged in the brutal act of murder. The learned sessions judge also held that the failure on the part of the prosecution to show the exact circumstances which should weigh against imposing the maximum penalty of death. The learned sessions judge, therefore, having considered there circumstances and also having considered the effect of certain decisions of the other High Courts, held that the sentence of the death should not be imposed. The accused was therefore, convicted under section 302, but sentenced to imprisonment for life. Against this order, the accused did not appeal. But the state filed the present application in revision. Since, however a notice of the enhancement also gives the rights to we arguing the question of conviction itself we permitted Mr. Kamlakar, we appears for the accused, to argue the case as an appeal, against the conviction.

(7) Mr. Kamlakar's contention was that the prosecution had in fact not proved in case at all. The accuser's defense which he had taken the court of session, was the following. He denied completely the incident as deposed to by the prosecution witnesses. His case that he was living happily with his wife, the deceased but the it was the insinuation of the her brother sadhu which disclosed this fact to him about a year before this incident, and that upset him so much that he fell it. During the course of his illness, his wife did not attend to him but on the contrary left the house along with the children and went to reside with her brother sadhu. She continued the her immoral means of earning money at the brothers house. This disgusted the accused. However he kept quiet.

(8) On the day of the incident, at about 4 P.W. when he had gone to the bazar, he saw that a woman was being attacked by another person. Out of humanitarian instinct he ran towards the woman and saw the assailant Krishna running away. He then found that the female who was attacked was his own wife. He picked her up and thereby had his clothes blood - stained. His case therefore was that he had done nothing. He had gone to the rescue to his wife but that nothings could do done because she was already dead. He further stated that the witnesses for the prosecution had given false evidences order to the hide the fact that it was sadhu and his other brothers wife panchafula who were responsible for the immoral life led by his wife.

(9 - 18) (After discussing the evidence and the circumstances of the case the judgment continues as follows:) Considering all these circumstances we hold that the learned Sessions Judge was justified coming to the conclusion that it was the accused to the who had delivered the blows with the knife on the body of the deceased Anusuya Which had killed her. The evidence given by P.W. 8 Dr. Humane considered along with post-mortem notes [Exh. P-17], is clear enough to prove that whoever had assaulted Anusuya had intended to causes her death. There were all in eleven injuries on her body. Injuries Nos 3 to 11 were all incised wounds. Injury No.1 in the post-mortem notes mentions that peritoneum outside the body in the epigastrium region Injury No.2 Mentions that the protruding organs were found punctured in the punctured in the epigastria region. Injuries Nos 2, 3, 4, 5, 6 and 7 were all injuries on the abdomen and the intestines had come out. In some cases the depth of injury No.11 was on the face right side. The six injuries to which we have made reference are all on one of the most vital parties of the body. The vital organs had come out and were found o be punctured. The intention of the person, therefore, who caused death. The medical evidence, therefore is clear enough to indicate that whoever assaulted, Anusuya intended causing her death. It is, therefore clear on the evidences of eye- witnesses and the medical evidences that the accused had intentionally caused the death of the Anusuya by causing knife injuries her abdomen on June 14, 196. The learned sessions judge, therefore, had come to the proper conclusion that the accused was guilty under section 302 of the India Penal code.

(19) In the view that we have taken, it is not at all necessary for us to consider to the defense taken by the accused that he was on a spectator and that he reached the sport after his wife was killed. We have believed the evidence of Panchafula [P.W. 1] Nana, [P.W.2], Ramrao, [P.W.3], Anjani, [P.W.4] and Kesheo [P.W. 5] to hold not only the at these witness had seen the accused deliver the blows on the body of anusuya but that, ultimately the accused was caught red-handed with the Knife in his hand. The knife is art. 18, and it was identified by Kesheo [P.W.5], who had snatched it from the hand of the accused. In the view that we have taken of this evidence,. It isn't necessary for us to consider the obvious cock and bull story given by the accused that he had seen some body assaulting woman that out of the humanitarian instincts he ran to rescue of the woman and that when he went near her he found that the woman was his own wife and that the she was killed.

(20) The important question, however, in this case, is in regard to the sentence. The trial court age a in his reason, viz., that the accused was not normal in the his mind., and held that this was an extenuating circumstances for giving the punishment of the imprisonment's for if to the accused, Mr. Dharmadkhiari, who appeared for the state, contents that this sentences has not been given by the learned trial judge by exercising in his discretion of the judicially. It is necessary in which case to consider to the exact manner in the which learned sessions judge considered that there were extenuating circumstances in the present case.

(21) In paragraphs 48, 49 50 the learned sessions judge consider this point in his judgment. In paragraph 48, the learned session, judge holds that the acts of the accused had been brutal and barbarous and extremely revolting. But he then observes as follows:

'.....................The fact, however, remains that unless the mind of the accused was extremely against the disturbed in fro some reason or the other not disclosed in evidence the accused would not have embarked upon the barbarous perpetration of the crime.'

He further the observes that it appeared him that even though It was not an act of sheer brutality of the accused, the circumstances in which the act was committed, were such that he must have been very much disturbed and agitated in his mind due to the distortion of by his wife along with the her chillier. In paragraph 49, the learned session, judge refers to decision of the Rangoon High Court , Nga Po Swa v. Emperor, reported to in AIR 1936 Ran 113, to hold the that the when there was no clear evidences of any strong motile for the offenses except that fact that if appeared to the learned judges, that the accused was in an abnormal mood when the committed the offenses, the extreme penalty was not called for. The learned sessions judges thereafter the refers to Mitha v. Emperor AIR 1933 Lah 123 to the hold that the sheer brutality of the assault in the absences of any provocation's of was a circumstances which lead to the inferences that the mind of accused was in actually hinged and far from normal. Under these circumstances while up holding the conviction of the accused under section 302 of the India Penal Code., the learned judges held that it was note case in which capital sentences should be imposed. These observations of the learned judges of the Lahore High courts have been relied upon the by the learned session judges in support of his conclusion of that there was an extenuating circumstances in this instant case by reason of brutality being exercised by the accused. Ultimately the learned judges hold that the conclusions of is irresistible that the mind of the accused was far from the normal and hence he indulged in the brutal act of murder. Lastly, the learned judge holds that the failure on the part of the prosecution of the except circumstances agitating accused mind at the relevance time was in his opinion, an extenuating circumstances which grounds weight against imposing the maximum penalty of death.

(22) The reasons why the dissertation was exercised by the learned trial judges in imposing the lesser of the two sentences falls into two aspects. Firstly the learned sessions judge holds that there was a failure on the part of the prosecution to prove an immediate motive strong enough to impel the accused to the do this act that it was with utter brutality without provocation, then an inferences could be raised that his mind was unhinged. we are of opinion that these assumptions are taken up by the learned judge dissociated from the facts of the particular cases in which those assumptions were made. Reliance was placed particularly on the Lahore case AIR 1933 Lah 123 I regard to the sheer brutality leading to an inferences that the mind was unhinged. The facts of that cases however, disclose that there were circumstances on which the learned judges came to the conclusion that an inferences regarding unsoundness of mind must be raised. This was a case a of a person murdering his two children and the evidences led by the prosecution had established that he was a loving father. It was also the held evidences by the prosecution had established that he was a loving father. It was also held proved on evidences that the mind of the accused was un sound, but it could not be said with any degree of certainly that he knew that what he was doing was wrong or contrary to the law within the meaning of Section 84 I.P.C. on these two established facts viz., that the accused was wrong or country inferences and was raised that the facts that he kills his own of children whom he loved, must lead to an inferences that the mind of the accused must have been unhinged. We are of opinion, that this inferences or assumption, that is raised in that case is based on the facts of that case and that there is nothing common between which led to the inferences being raised and that facts of the present cases.

(23) In the instant case we cannot ignore two circumstances firstly, that for a period the husbands and she had also taken her four children, with her. The second circumstances that canto forgets is that an allegation was made by the that there an allegations was made by the was wife the her husbands her asked her to follows an immoral profession for the purpose of earning, money of support of the family, we cannot in these two circumstances hold that the husbands had continued to be loving husband. In view of these two circumstances we are a opinion that the facts of he instant of the case distinguish it entirely form the facts of the Lahore case and that the learned sessions judge was certainly not justified in applying the analogy of the Lahore case to the facts of the instants case.

(24) The second circumstances on which reliance's is placed by the learned Judge to hold that an irresistible inferences arises that the mind of the accused was far from normal and that he then indulged in the brutal act of murders is more or less speculative. There is no evidences is which would establish that the accused mind was far from normal. It has not been shown by the prosecution nor has any material been elicited by the accused to hold that the accused mind was in any way affected. In the absences of any such circumstances or evidences we are of opinion, that this inferences raised by the learned was for from normal is speculations and has no references to the a man his does not commit murder of his wife of the mind of is agitated. But the agitation of the mind does not necessarily lead to the an inferences that it had affected his mental capacity as of as it lead to an inferences that the mind was unhinged or had become unsound.

(25) The learned counsel for the accused contended that the facts that the prosecution has failed to the prove any motive had a substantial bearing on the point under consideration. His arguments was that the accuser's defense we could come to conclusions whether the act of immorality which is imputed to the deceased, was at the suggestion of the accused or at the suggestion of her brother sadhu. If the suggestion of the come from sadhu and the accused story is true that his wife had gone astray on accounts of the in inception of the or persistence on accounts of the insinuation could have some disturbances of his mind not brought about by his own actions. It is therefore necessary to considers the story given by the accused and these story given by the prosecution witnesses in regards to these insinuations regards the immoral life.

(26 - 29) (After discussing the evidences on the point, His Lordship continued as under:) This facts in then established by the prosecution that it was the accused who was calling upon his wife to lead an immoral life and the she had not only refused to lead in immoral life, but that she had left the house or her husband and had gone to live with her brother along with the her four children. The prosecution therefore upon this evidences establishes that the accused had a grievances against the deceased because she had refused to do what he had asked her to do, and in the bargain had left his house. Altogether. This according to us was sufficient motive for a man to brood upon for a period of about three months during which his wife was livings away from him. It cannot therefore he held that there was no motive, or that there was no provocation at all given by the wife to the husband for this drastic action. It may be that such for incidents to do not play a largess part in the life of some persons. But we cannot hold that they are not likely to play such a largess part in the life of any man whatsoever. In certain circumstances such an acts will be a sufficient motive, and we are of opinion, that the prosecution has not failed to prove a motive.

(30) In this connection, we may point out that this particular factor that there was motive distinguishes this case clearly from the facts of the Lahore case AIR 1933 Lah 123. The observations of the learned judges are prefects by he words 'in the absences of nay provocation, sheer brutality of assault would lead to an inferences etc.' We, therefore hold that the learned sessions judges has speculatively held that it was so far agitated that it would amount to the an extenuating circumstances for not imposing the capital punishment.

(31) The facts established by the prosecution, therefore, are:

(1) that the financial circumstances of the accused had deteriorated about a years before this incident.

(2) that the accused was calling upon his wife, who had already borne four children from him to read an immoral life to the earn money to give to it him.

(3) that the wives refused to do so and life the house of her husbands about three months before this incidents and.

(4) that, on that day of the incident, the accused had come with a knife in his hand to the Bazar, and upon the sight of the deceased along with others he rushed at the deceased and gave blows that with in the vital parts of her body taking out the intestines in the process.

We are of opinion, that these circumstances are serious enough to show that the in case of this accused for bring considered for a sympathetic view in regard to the sentences.

(32) Mr. Kamlakar then urged that a dissertation lay in the learned sessions judge in the matters of sentence. That discretion was exercised by the learned judge and that the discretion of having been exercised we should not lightly discard that discretion. He then referred to decision of the Supreme court in Alamgir v. State of Bihar : 1959CriLJ527 , in support of his contention. Their lordships of the supreme court had enhanced the sentences given by the lower courts and appeal was filed by the accused before the supreme court. Their lordship dealing with the question of sentences in regard to the conviction under section 498 of the Indian Penal Code under that they were satisfied that the Hindu held that court was not justified in directing appellants No.1 to suffer rigorous imprisonment for six moths by way of enhancement of the sentences. Their Lordships observed that the High courts undoubtedly has jurisdiction to enhances such sentences of under S. 439 criminal procedure code but this jurisdiction can be property exercised only if the High Court is satisfied that the sentences imposed by the trial judges is unduly lenient, or that, in passing the order of sentences of the trial judge had manifestly of failed to considers of the adequacy of the sentences where there was amply latitude for a bigger sentences or a lesser sentence. The point, however, before us is not question, of adequacy of sentences where the case of an alternative only. There are only two sentences for announces of murder. (1) death and (2) imprisonment's of for life and the normal rules of adequacy of sentence, therefore would not apply, because there it is a case of an alternative latitude in regard in the adequacy of sentence. This question however in regards to the sentences as twice of dealt with by two Divisions Benches of this court, once is state v. Airarsing : AIR1956Bom231 and on the second occasion in the state. Pendurang, : AIR1956Bom711 . On both the occasions, the learned judges were considering a sentences for murder under section 302 of the Indian Penal Code Mr. Justice Shah (as he then was) in considering the alternative sentences observed as follows in : AIR1956Bom231 .

'.................... If we were called upon to try this case we have no doubt that we could have imposed, if we were satisfied on the truth of the prosecution evidences the death sentence. But the learned session judges having exercised the discretion, which indisputably is vested in him, this courts would not be justified in interfering with the exercise of that the discretion unless in it founds that the exercise of discretion is perverse or in fact no dissertation whatever has been exercised.'

(33) In dealing with the same point in the state v. Pandurang : AIR1956Bom711 the same learned judge observed as follows:

'When as accused person is convicted of an offenses of murder the normal sentences of be imposed of is the sentences of death. If the sessions court does not impose the sentences of death reason must be assigned for not imposing that sentence. It is true that there is certain amount of discretion vested in the court of first instances to impose or not to impose of the death sentence. But the discretion must be judicially exercised. If there are circumstances which in the law view of the court of session justify it in not imposing the death sentence, normally the High Court would not interfere with the exercise of that discretion'. Dealing with the facts of the learned judges observes furthers as follows: 'But, in the present case, in our view, there appears to be no exercise, whatever of the discretion vested the trial court. The learned sessions judge has himself pointed out that the offenses was committed in broad day lights and it was a calculated cold - blooded and pre - mediated murder.'

The learned judge thereafter death with the question of sentences of merits. But these two decision of the Divisions Benches of this court have laid down that if it appears to this court that they discretion has been exercised perversely or that the discretion has not at all been exercised, then this court has not at all been interfere in the matter of sentence.

(34) We have earlier pointed out that if is clear to us that the learned sessions judge has givens reason which appears to us to the be more or less speculative. In facts, the learned judge has, in varies earlier paragraphs found certain fact which he should have considered it the matters of sentence. In paragraph 45, while dealing with the defendants of the accused, the learned judges observes as follows.

'That act was clearly premeditated.'

In paragraph 48, while considering the question of sentences the learned judges observed as follows:

'True that the act of the accused had been brutal and barbarous and extremely revolting'.

Having come to the conclusion that the act was pre - meditated and that the act were also brutal, barbarous and extremely revolting, the learned judges, should have been taken these facts into considers while exercising his discretion. Instated of the taking these facts into consideration, the learned judge proceeded to go on speculative reason that the mind of the accused had got unhinged. We have earlier pointed out that there is no evidences of support of this findings of the learned judges that the mind of the accused was unhinged or was in any way unsound. We are, therefore of the judge not having taken his necessary facts into consideration or having relied upon reason which are more or less speculative, has not exercised the discretion at all. It is, therefore necessary facts for as to the exercise o the discretion.

(35) The next question that arises of is about the sentences of death.

(36) Mr. Kamlakar urged that after the amendments of section 367 [5] of the Criminal procedure code there is no obligations upon the courts after holding an accused guilty under Section 302 I.P.C. to impose a death sentences of the preferences to the sentences for imprisonment for life. Before the amendment of section 3677 [5] in 1956, the section read as follows:

'367 [5] If the accused, is convicted of an offenses of punishable with death and the court sentences him to any punishment other than death the court shall in judgment state the reason why sentences of death of was not passed'.

A view was taken constant with section 367, that sub - section (5) thereof entailed that the sentences of death was a primary sentence in regard to the offense of murder of and that if the said sentence of was not imposed there was an obligation upon the judge to explain why. The decisions have consistently taken the view that the Sentence of than the sender of death. These two facts considered together viz., that the sentence of death is a higher punishment and that the reasons have got to be given in the judgment by the judge giving a lesser sentence of why the death sentence is not imposed were held to lead to an inferences that the capital sentence was the main punishment for death. Mr. Kamlakar urged that the in 1956 section 367 Cr. P.C was omitted from the criminal procedure code in this would only be the result of the legislature having intended to consider capital sentences upon the primary punishment of for murder. In other words the two sentences, one of death and the other of the imprisonment for life were co - ordinate sentences any that either could begin without giving any reason for the same. The question is whether the amendment of section 367 [5] was intended for this reason and it has to be so carried out.

(37) On this point decisions of the two High Court were brought to out notice. The allahabad High Court in an earlier decision, satya Vir v. State : AIR1958All746 didn't decide this point but doubted the correctness of the arguments of the counsel to the following effects:

'The assumption that the sentence of the death was normal penalty for murder and imprisonment for life the exception of which had to be justified by some reason of was based onto law as embodied in sub - s [5] of S. 367, Cr. C.P before its repeal by the code of the Criminal procedure Amendment Act, 26 of the 1955 with effect from 1-1-1956. Since of the omission of that sub - section the question of proper sentence of where the accused is convicted of an offenses punishable with death is to be decided, not on any assumption, of that nature, but likely other point for the determination with the decision therefore and the reasons for the decisions, as provided by Sub - s (1) of that section.'

The same High Court however, in altar decision dispelled this arguments. In Ram Singh v. State : AIR1960All748 the learned judges considered the same point and in paragraph 10, the learned judges observed as follows:

'We do not think that the amendment of S. 367 Cr. P.C affect the law regulating punishment of under the penal code. This amendment related to procedure and now courts are no longer required to elaborate the resins for not awarding the death penalty but they cannot depart from sound judicial considerations is preferring the lesser punishment. A court may record no reason for not passing the death sentences of but if it awarded life imprisonment of for cold - blooded and revolting murder the absence of the reasons will not save is preferences of from being in judicial'.

(38) The Madras High Court dealing with the same question in re Vadivelu Thevar. AIR 1965 Mad 48, observed as follows.

'With regard to the sentences of the we are constrained to observe of that he learned sessions judge has given in no reason for imposing the lesser sentences of paragraphs 49 of his judgment, though in a paragraph 45 he expresses the view of the appellants of had the excuse of the hews wounded in this tenders feeling by him wife's ultimate confession. Unfortunately in state has preferred no revision of the matter sentence of we hence feel most reluctant to interfere. But in the interest of justice, we are constrained to point out that this we are constrained to point out that this is accuse in which the extreme penalty of the law definitely appears to be called for.'

While dealing with the question of the amendment of the criminal procedure code by the deleting sub section [5] of section 367 the learned judges observed as follows at page 49.

'....................We are making these observations because we wish to make it very clear for the guidance's of courts of trial, that while there is judicial discretion vested in Session judges of awards of the lessors penalty in a case of the murder and the criminal procedure code, as now amended, does not require requires reasons to be stated, this does not mean that any special pleading or formal excuse should displace such property of formal eureka judicial discretion and though. It is the duty of the courts to award the extreme penalty of the law, for purposes of deterrence, in all case of murder where the crime is deliberate and there are not extenuating feathers.'

(39) The later decision of the Allahabad High Court in AIR 1960 All 478 and the decision of the Madras High Court. AIR 1965 Mad 48 have taken a clear view that the amendment of section 367 [5] of the Criminal procedure code had made no difference of in the matter of sentence for an offenses of the murder under section 302 of the India penal Code.

(40) In Vadivelu Thevar v. State of Madras : 1957CriLJ1000 their Lordship had to deal with the question of sentences of under section 302 of the Indian Penal code, and the observations of their Lordship In paragraph 13 at page 619, are as follows:

'..................If the court is convinced about the truth of the prosecution story, conviction has to follows. The question of sentence has to be determined, not with references to the volume or character of the evidence adducted to by prosecution in support of the prosecution case, but with reverses to the fact whether there are prosecution is support of the prosecution case, but with reference to that fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied only that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law ......................

The questions as to what punishment should imposed is for the court to decide of all the circumstances to the case with particulars reference to any extenuating circumstances.'

Their Lordships clearly laid to down that unless there are extenuating circumstances, the punishment fro murder of the should be death, and not imprisonment for life. This case was in relation of he offenses which was committed before the criminal procedure code amendment of act, 26 of the 1956 of was enact. The question is whether of this decision of would prevail even after the amendment. We are of opinion, that these observation, would of opinion that these observations of would prevail even after whether the amendment. We are of opinion that these observations would prevail in spite of the amendment.

(41) The amendment, in our opinion does not affect the question regarding the exercised of the discretion section 367 [5] Cr. P.C. before amendment of laid down what the judge should state in his judgment of exercise of the discretion of section 367 [5], as it stood before amendment did not off her any guidance. If guidance's was not offered by the section as the it stood before the amendment byte deletion by amendment could not affect the exercise of discretion.

(42) A discretion has to be exercised judicial. It must also appear that it is so exercised. This can be done if reasons for the exercise of the discretion. Whether the statute requires is or not reason have to no relevance on the decision itself. We are in agreement onto with the learned judge of the Madras and Allahabad High court on this Point.

(43) The observations of the supreme court : 1957CriLJ1000 give the necessary guidance. The supreme Court has clearly laid down that except in cases where there are extenuating circumstances the normal punishment for the offense of murder under Section 302, of the Indian Penal Code, is death. We cannot, therefore agree with the argument advanced by Mr. Kamlkar that, after the amendment of Section 367 [5] of he criminal procedure code, a change of is brought about in regard to the alternative by the sentence of under the section 302 of Indian Penal code.

(44) The last question is whether there are any extenuating circumstances in the present case. We are of opinion that there are none. On the contrary, the circumstances paper of us to be rather aggravated. No man should ordinary call upon his wife to earn money for him by living a life of immorality. The wife was justified in refusing this request. She was also justified in refusing to live with her husband who had asked her to be lead an immoral life for the purposes of earning money for him.

(45) The assessed, therefore asked his wife to do something's, which no wife should be asked to do and no wife would willingly do. He brought a refusal upon himself and, naturally must have been brooding. The entire evidence discloses not other circumstances which would lead the accused to do this act. There was no other provocation of which was given by the deceased to the accused which given refuge to do every time. The refusal, she refuse to do something which a wife should refuse to do every brought about in righteous manner, to case give any provocation to the husband to cause any harm to the woman, let alone her death.

(46) The manner in which the death was caused isles well expressed by the learned sessions judge as cruel barbarous and extremely revolting. In broad day = light this man come with a knife in his hand with blade 8 inches long. He runs after his wife immediately upon seeing her catches, hold of her by her hair and then goes on delivering blows one after the other. Twice he was hampered in this by one of the witnesses who wanted to the save the woman but the accused pushed him away and continued his barbarous act. The woman did no the spot. In out opinion, there are no extenuating circumstances at all in this case.

(47) Mr. Kamlakar urged that the children now left behind would be orphans if we direct the dealt penalty for the accused. That, our opinion, cannot be a consideration for sympathy to be extended to the accused. All our sympathies are with the children. But we are of opinion that we can do nothings for them in this matter. Saving the life of this man in our opinion, would be putting him in jail for a period of about not less then 15 years. The youngest child is about three years old. By the time this man comes, out the youngest child will have attained sufficient maturity to earn his livelihood. This man, therefore is useless to them for all purposes. Whether we give him to the sentences of imprisonment for life or the sentences death will be of no consequences to them. We are, therefore of opinion, that it is necessary to interfere with the discretion of exercised by the learned sessions judge in granting him the sentences of imprisonment for life.

(48) Mr. Dharmadhikari, who appears for the state also states that the fine imposed should be set aside. The sentences of fine is set aside.

(49) We, therefore, allow the revisions of application and make the rule absolute. We confirm the order of conviction of the accused opponent Gourishankar under section 302 of the Indian Penal Code passed by the sentences of imprisonment for life and a fine of Rs. 300/- imposed by him on the accused thereunder, to a sentence of death. We direct that the accused be hanged by the neck till he is dead.

(50) Sentence enhanced.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //