Murray Coutts Trotter, Kt., C.J.
1. In this case two men who are brothers were tried for the murder of a man called Narasingadu on/the 21st October last. The motive for the murder is plain enough. The elder brother, the 1st accused, had obviously been engaged in traffic in illicitly distilled arrack. The deceased man who was an official and not a mere intermeddler with other people's affairs gave information some time in September that the 1st accused was engaged in this illicit business. Thereupon the Sub-Inspector of Excise, Mr. Luke, searched the 1st accused's house and found in it quite a substantial quantity of illicitly distilled arrack. For that the 1st accused was prosecuted and convicted and the case was pending at the time of this man's murder. He disappeared on the afternoon of the 21st which was a Friday. The 2nd accused is alleged to have had a separate sexual motive but, in view of the fact that he and his brother were both seen on the scene of the murder standing by the dead man's body, it is not really necessary to go into that question. The little boy Kasigadu called as P.W. 9 gives a very clear story of what he heard and saw. He heard a gun shot on the Friday when he was grazing some cattle. He went in the direction of the place where he heard the shot fired and met the 2nd accused's wife and put a question to her which she did not answer. He went on a little further and there he saw the deceased man lying in the bed of a channel covered with blood. Close by him was the 2nd accused with a gun in his hand and behind the 2nd accused stood the first. The boy had fever that night and when he went home he did not report what he had seen to his parents. His explanation which the learned Judge entirely accepted was that having seen the obviously murdered body of a Talayari at the feet of these assassins he was terrified as to what might happen to himself. But next day when it became the subject of discussion that this deceased man was missing, he suggested to his parents that they should search the Edurla Venka that was near. There this man's body was found. It had been horribly mauled and half eaten away by wild beasts so much so that when the surgeon made his post mortem a clay later, it was found that practically all the intestines and many other parts of the body had been devoured. Rut enough was left to show this, that a bullet had gone through the body fracturing the sixth and seventh ribs on its way and that bullet was afterwards found in the bed of the channel; also that the man's skull had been fractured, a fracture which was clearly caused by an axe which was found lying near his body which apparently belonged to himself. The probability is he was shot first and then-what was to be the coup dc grace was a blow with the axe. It is reasonably clear--not that in the light of what I am about to say it matters very much--that it was probably one person who fired the shot and the other who gave the blows with the axe. On the boy's information when the police examined him these two men were arrested and put on their trial for murder. The learned Judge convicted them of murder but abstained from passing the death penalty. Mr. Justice Devadoss who perused the calendar has put this case up to us for enhancement in order that we should consider whether these men should be sentenced to death. The course is one which, speaking for myself, I extremely dislike unless I feel myself constrained to adopt it. When a main has once been on trial for his life and has escaped with his life, it is obviously a very serious step to take away that life on appeal except in an extreme case. I regret to say that this is clearly an extreme case. It was a horrible, murder from the most sordid of motives and I am at a loss to understand what induced the learned Judge to adopt the course he did. But he has given his reasons and I think it best to set them forth. He says this at the end of his judgment
As regards the sentence I take into consideration the fact that it is not clear which of the accused fired the gun and who cut the deceased man on the head with an axe..as if that matters.
The medical witness says that Narasingadu should have died owing to shock on account of the fractures of the skull and the ribs. It appears to me that the fatal wounds were those of the head as it is rarely that a man succumbs by the mere fracture of his two ribs.
2. As to that the question is not merely as to the fracture of the ribs but what lesions were caused to the tissues inside and the vital organs after the bullet has parsed the fractured ribs on its way through the body to go out the other side as we know it did.
The evidence does not show which accused it was that caused the fracture to the skull. In view of these considerations I sentence both the accused to transportation for life.
3. I very much regret to say that there are quite a number of Acting Sessions Judges in this Presidency who appear to labour under the delusion that, where it is clear that two or more people banded themselves together for the express purpose of taking a man's life, it is not right to pass the death sentence, however horrible the circumstances, unless you can put your finger on the accused who delivered the particular blow that is to be regarded as mortal. That, is a complete illusion and would be cured by a perusal of any elementary text-book on Criminal Law. This case is so horrible that I feel constrained to take the course which I dislike, namely, of directing that these sentences be enhanced and the accused be sentenced to death.
Pakenham Walsh, J.
4. I agree with my Lord the Chief Justice. I myself do not like enhancing of sentence in these cases unless it appears to be absolutely called for. But in this case I think the murder is such a brutal one that we have no other course but the one we adopt.