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Kaikhushru Khursetji and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberConfirmation Case No. 9 and Cri. Appeal No. 499 of 1952
Judge
Reported inAIR1953Bom166; (1952)54BOMLR964
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 374, 375, 375(2), 376, 418, 418(1), 418(2), 423 and 423(2) ; Indian Penal Code (IPC), 1860 - Sections 120B, 302 and 404 to 411
AppellantKaikhushru Khursetji and anr.
RespondentState
Appellant AdvocateS.G. Patwardhan, ;M.N. Parikh and ;V.D. Tulzapurkar, Advs.
Respondent AdvocateH.M. Choksi, Govt. Pleader
Excerpt:
.....confirmation of sentence of death passed by sessions court--accused, in same case, convicted by jury for offence under section 404, indian penal code--whether high court competent to go into matters of fact and law in respect of conviction, under section 404--expression 'in any case' in section 376, criminal procedure code, means the whole case.; the opening words, 'in any case', in section 376 of the criminal procedure code, 1898, mean the whole case, i.e., in the case of the accused sentenced to death not only the case with regard to the offence under section 302, indian penal code, or any other offence punished with death but also for any other offence of which he has been tried and convicted at the same trial.; in a case where a person is convicted and sentenced to death by the..........fact as well as a matter of law. section 418, sb-section2) is not confined to eases in which a co-accused is convicted of murder or of any other offence punishable with death. he may be convicted of any offence. we see no reason why the legislature should have intended that a co-accused may be placed in regard to other offences on a better footing than the accused who is sentenced to death. in our view, therefore, the proper interpretation to be placed upon the opening words in section 376 is 'the whole case', i.e., in the case of the accused sentenced to death not only the case with regard to the offence under section 302 or any other offence punishable with death but also for any other offence of which he has been tried and convicted at the same trial.[2] we, therefore, alter the.....
Judgment:

[1] Both accused in the case were convicted under ss. 302 and 120B, Penal Code. One of them was also convicted for an offence under s. 404 of the same Code and sentenced to six months' R.I. For the offence under s. 120B both were sentenced to seven years' R.I. and for the offence under s. 302, to death and the case was referred to High Court for confirmation of death sentence.

Bavdekar, J.

[After setting out the facts and dealing with the evidence in the case his Lordship confirmed the convictions and the sentences passed on accused No. 1 and proceeded:] That accused No. 2 can he convicted of this offence [under Section 411, Penal Code] without our going into the question of misdirections or non-directions in the learned Judge's charge to the jury, is quite clear from Section 376, Criminal P.C. Under that section, when once there is a conviction in respect of an accused person and reference for confirmation of the sentence of death passed upon him is made to us, the whole case is reopened before us and it is open to us to convict him either of the offence of which he has been convicted by the trial Court or any other offence of which the trial Court could have convicted him. It is true that under Section 374, the record which is submitted to us is the record for the confirmation of the sentence of death. If there is no sentence of death, there is no confirmation necessary. But, all the same Section 374 says that when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court and Section 376 uses the words 'in any case submitted under Section 374.' In such a case, the High Court may annul the conviction or convict the accused of any offence of which the Sessions Court might have convicted him. The words 'in any case' have to be interpreted. One argument is that the words mean only the case so far as the offence under Section 302 or any offence for which the death penalty has been imposed is concerned. The other interpretation which can possibly he placed upon the words is, not only the case in regard to the offence for which the death sentence is imposed, but the whole case against the accused person in case he was tried at the same trial for Any other offence. In my view, that is the correct interpretation for the reason that, under Section 118, Sub-section (3), Criminal P.C., when in the case of a trial by jury any person is sentenced to death, any other person convicted in the same trial with the person so sentenced may appeal on a matter of fact as well as a matter of law. Section 418, Sb-section2) is not confined to eases in which a co-accused is convicted of murder or of any other offence punishable with death. He may be convicted of any offence. We see no reason why the Legislature should have intended that a co-accused may be placed in regard to other offences on a better footing than the accused who is sentenced to death. In our view, therefore, the proper interpretation to be placed upon the opening words in Section 376 is 'the whole case', i.e., in the case of the accused sentenced to death not only the case with regard to the offence under Section 302 or any other offence punishable with death but also for any other offence of which he has been tried and convicted at the same trial.

[2] We, therefore, alter the conviction of accused No. 2 under Section 404 to that under Section 411; and set aside his conviction under Section 302, Penal Code. We maintain, however, the same sentence which has been passed upon accused No. 2 for the offence under Section 404, i.e., he will continue to undergo rigorous imprisonment for a period of six months for the offence under Section 411. The conviction and the sentence passed upon accused 2 for the offence under Section 120-B is also sot aside.

Vyas, J.

[3] [His Lordship after stating the facts continued.] Then, as against the accused 2 who has been convicted and sentenced to death under Section 302, Penal Code, there is also a charge under Section 404, Penal Code, and it is to be noted that, in respect of that charge also, there is a conviction of this accused based on an unanimous verdict of the jury against him. Now, Section 418, Sub-section (1), Criminal P.C., lays down that whore the trial is by jury, the appeal shall lie on a matter of law only and Section 433, Sub-section (2) of the Code, enacts that the Court is not competent to alter or reverse the verdict of a jury unless it is of opinion that the verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by the Judge. However, when a person is convicted and sentenced to death by the Court of Session and that Court has submitted his case to the High Court under Section 371, Criminal P.C., for the confirmation of the death sentence and where there is also an appeal made to the High Court by the convicted person against that conviction and sentence, the High Court is entitled to go into the facts of the case as well as law without the accused person having to show misdirections or non-directions in the charge to the jury and the High Court may confirm the conviction and sentence or may annul the conviction and acquit the accused under Section 376 of the Code. Now here a question arises. In a case where a person is convicted and sentenced to death by the Court of Session, if he is also convicted of a smaller charge on the verdict of the jury, can the High Court, in a composite appeal against the conviction and sentence of death for the charge of murder and also against the conviction and sentence upon a smaller charge, go into the facts in regard to the smaller charge without the accused having to prove misdirections? In our view, the answer to this must be in the affirmative in view of the words 'in any case' in Section 376, Criminal P.C. In a number of cases it has been held that when a case of an accused person, who is sentenced to death, is submitted to the High Court under Section 374, Criminal P.C., the whole case is re-opened before the High Court and the High Court is bound to go into the facts as well as law, although the conviction is based upon the verdict of the jury. In Emperor v. Narhari, 48 Bom. L.R. 163, the Division Bench of this Court observed (p. 170): 'With regard to the reference under Section 314, Criminal P.C., it has been pointed out in Emperor v. Daji Yesaba, 17 Bom. L. R. 1072 that the practice of this Court has been that where a prisoner has been sentenced to death, even though the conviction is on the unanimous verdict of the jury, the whole case is reopened before the High Court both on matters of fact as well as on matters of law, though there does not seem to be any considered ease in which this has been held to be the law on the subject. There can, in our opinion, be little doubt that this practice is correct. A reference to Section 375, Criminal P.C., shows that when proceedings are submitted under Section 374, and the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the accused, it has the power to make such inquiry or take each evidence itself or direct it to be made or taken by the Court of Session. Sub-section (2) of Section 375 lays down specifically that 'such inquiry shall not be made nor shall such evidence be taken in the presence of jurors or assessors.' This, it seems to us, is a clear indication that the whole case is reopened before the High Court on submission under Section 374, and that the High Court is bound to go into the facts as well as the law although the conviction is by the verdict of the jury. This view is in accordance with the decision in Emperor v. Gul, 15 Sind L.R. 103 where it is held that a High Court has power to substitute its own finding for the unanimous verdict of the jury in a trial for murder, when the sentence comes on for confirmation before the High Court.'

In Emperor v. Narayan Ramchandra, 50 Bom. L.R. 151, Gajendragadkar J. who delivered the judgment said (p. 153):

'... The powers conferred by this section seem to indicate that in dealing with confirmation cases the High Court should be free to go into all questions of fact and law and take further evidence if necessary....We are, therefore, clearly of opinion that Section 376 must be read as conferring upon this Court the powers mentioned in Clauses (a),(b) and (c) of the said section, unaffected by the provisions of Section 413(1) and Section 423(2). Section 376 deals with an exceptional class of cases and to such class of cases the general provisions of Section 418 and Section 493 cannot apply. It may be pointed out that when Hayward J. expressed his doubts on this question in Emperor v. Daji Yesaba, Sub-section (2) of Section 418 had not been introduced in the Code o Criminal Procedure. In our opinion, the amendment made by the said sub-section leaves no room for doubt that the powers of this Court in dealing with confirmation cases are what in practice they have always been held to be. We are, therefore, satisfied that the uniform practice of this Court is consistent with both the letter and the spirit of Section 376 of the Code. On that view we think we are entitled--and indeed bound--to consider all questions of fact and law which arise for our decision in the present case. It is true that in deciding these questions we may take into account the fact that there his been a trial by jury and the jury have returned a majority verdict of guilty against the accused. But the importance of the said verdict cannot, in our opinion, be exaggerated when the case falls to be decided under Section 376.'

[4] In Abdul Rahim v. King-Emperor, 50 cal. 092, which is a Privy Council case, it was held that in performing its duty under 3. 374, Criminal P.C., when a sentence of death is submitted to it for confirmation, the High Court of necessity is entitled and bound to consider the whole merits of the case for itself. In Emperor v. Rashbehari Lal, 34 cri. L. J. 83, it was observed that the restriction imposed in a. 418 did not apply to the reference under Section 374. The effect of these decisions clearly is that, when a case of an accused person is submitted to a High Court under Section 374, the High Court is bound to go into the merits of the whole case. Now, the meaning of the expression 'the whole ease' cannot be restricted only to that part of the conduct of the accused which has a bearing on his conviction under Section 302, Penal Code, i.e., only to that conduct of his which was responsible for causing the death of the deceased. When the High Court has to consider the whole case on a reference to it under Section 374, it has got to examine for itself the entire merits of the case and the evidence in respect of the entire incident, i.e., the evidence in respect of the entire conduct of an accused person and the part played by him in the whole incident. When we are speaking of the High Court examining the 'whole case', we cannot divide the incident which is the subject-matter of the prosecution into parts more than one and say that the High Court is competent and bound to examine only that part which is directly connected with the death of the deceased and not the remaining parts, which also are integral parts of the prosecution case, and which led up to or accompanied the main incident of the causing of the death. In other words, the High Court is bound, upon a submission to it under Section 374, to examine the evidence in respect of all the charges against the accused for which he is convicted upon the verdict of the jury,

[5] Section 418, Sub-section (2), Criminal P.C., provides that when the case of an accused person, who is convicted and sentenced to death under Section 302, Penal Code, is submitted to the High Court under Section 374, Criminal P.C., a co-accused, who is convicted upon a smaller charge in the same trial by jury, is also entitled to appeal on a matter of fact as well as a matter of law. Now, in this case, the position of accused no. 3 is not merely that of a co-accused who is only convicted upon a smaller charge. He has been convicted and sentenced to death under Section 302, Penal Code, upon a trial by jury and has also been convicted and sentenced, in the same trial, for a smaller charge under s. 404, Penal Code, and the question is whether in his case, in regard to the conviction for a smaller charge, it is competent to this Court to go into matters of fact as well as matters of law while deciding the submission under Section 371, Criminal P.C., for the confirmation of the sentence of death passed upon him under Section 302, Penal Code. Our answer to this question is in the affirmative, in our view, it would be inconsistent with the spirit of SECTION 418, Sub-section (2), Criminal P.C., to construe Section 376 of the Code to mean that when a person who is convicted and sentenced to death under Section 302, Penal Code, is also convicted and sentenced upon a smaller charge and when his case is submitted to the High Court under Section 374, Criminal P.C., for confirmation of the sentence of death, the High Court can go into the facts only in regard to the charge under Section 302, Penal Code, and cannot go into the facts in regard to the smaller charge. In our view, under Section 376, Criminal P.C., the High Court is entitled and bound to entertain the appeal, even in the ease of such an accused person, on matters of facts as well as matters of law even in respect of his conviction upon a smaller charge. In our opinion, therefore, this Court is entitled and indeed bound under Section 376 to examine the facts of the entire case against accused 2, covering not only a charge under Section 302, Penal Code, against him hut also a smaller charge against him, for which too he is convicted upon the verdict of the jury, without the accused having to prove mis. directions or non-directions,

[6] [His Lordship concluded :]

404

411

302

[7] Order accordingly.


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