1. The accused Amarsing Raising was charged before the learned Additional Sessions Judge, Kaira, with having committed an offence under Section 302, I.P.C. The case was tried with the aid of Assessors. The Assessors were unanimously of the view that the accused was guilty of the offence charged. The learned Sessions Judge agreeing with the view of the Assessors convicted the accused of the offence under Section 302, I.P.C.
The learned Sessions Judge was, however, of the view that 'considering the circumstances of the case it would meet the ends of justice if the accused was sentenced to transportation for life.' Against the order of conviction and sentence the accused preferred an appeal to this Court and that appeal was summarily dismissed.
Thereafter the State has moved by Criminal Revision Application No. 978 of 1955 for enhancement of sentence and the application for enhancement of sentence is now placed for hearing before us. It is true that even though the appeal has been summarily dismissed by us, on this notice of enhancement of sentence the accused is entitled to show that the conviction was, on the merits, unwarranted.
2. The charge against the accused was that on 21-6-1954, at about 2-30 A.M. he had caused the death of his father Raising Nathabhai by giving him a blow with a dharia on his neck and had thereby committed an offence punishable under Section 302, I. P. C. The case for the prosecution was supported by the testimony of the two brothers of the accused named Banesing and Pratapsing.
Information about the commission of the offence was given by Banesing and Pratapsing to their brother-in-law Jamintkhan and immediately thereafter to the police officers. The learned Sessions Judge believed the testimony of Banesing and Pratapsing especially when the testimony was corroborated by several circumstances such as the communication of the information to their sister who was residing with them, to Jamistkhan and to the police officers.
It appears that on the very night the police officers tried to ascertain whether the accused was in his house and it was found that he was not, and ultimately he was arrested at a considerable distance in the afternoon. Having regard to all these circumstances, no attempt is made to challenge the conviction of the accused before us.
3. It is true that by a single stroke of an axe the accused, appears to have cut all the blood vessels of the neck of his father, Raising, who was sleeping. The offence was the more reprehensible inasmuch as the victim of the offence was his father. Normally for offences of this nature we should think that the death sentence is the proper sentence to be inflicted.
The learned Sessions Judge, however, appears to have been persuaded to impose the lesser penalty. If we were called upon to try this case, we have no doubt that we would have imposed, if we were satisfied of the truth of the prosecution evidence, the death sentence. But the learned Sessions Judge having exercised the discretion which indisputably is vested in him, this Court would not be justified in interfering with the exercise of that discretion unless it is found that the exercise of discretion is perverse or in fact no discretion whatever has been exercised.
We cannot say on the record of this case that there has been no exercise of the discretion at all by the learned Sessions Judge or that it is perverse. We would not, therefore, be justified in interfering with the exercise of the discretion by the learned. Sessions Judge and with the order passed by him merely because we might take a different view as to the propriety of the sentence imposed. The rule is, therefore, discharged.
4. Rule discharged.