1. The appellant has been convicted by the learned Sessions Judge of Guntur of the murder of a little girl one Seetharamamma. The trial Court imposed a sentence of transportation for life and the learned Judge who perused the judgment of the trial Court ordered the issue of a notice to the prisoner to show cause why the sentence should not be enhanced to a sentence of death.
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2. After dealing with the evidence His Lordship concludes.
3. In our view the guilt of the accused has been proved beyond any shadow of doubt and we have no reason to suppose that the evidence for the prosecution is other than true.
4. This appeal will therefore be dismissed.
5. In considering the question whether the sentence should be enhanced, it is well to remember that the appellant has been convicted of the murder of a little girl whom he was proved; to have taken from her house for reasons which have been shown to be false. He was never intending to take her to her grandfather. The moment the girl's mother heard of his supposed intention she was surprised. She states she wondered why-after the quarrel between herself and the wife of the accused, the accused should take her daughter away without her -permission because be it remembered that when P.W. 1 left the house that day there was no question. The accused never asked her permission to take her daughter so far away as Tekkallapad nine miles distance. We cannot doubt therefore that this murder was premeditated and deliberate. Why exactly it was perpetrated is known only to the appellant. The learned Judge dealt with the question of sentence as follows:
As to the punishment since the guilt of the accused has been proved by strong circumstantial evidence this is not a case calling for capital punishment. I therefore sentence him to transportation for life.
6. That reason namely that the conviction was based on circumstantial evidence has been in innumerable cases condemned by this High Court. It was condemned in 1914 by Ay ling and Kumaraswami Sastri, JJ., in Muniyandi v. Emperor (1915) M.W.N. 34, in 1921 by Ayling and Krishnan, JJ., in Public Prosecutor v. Paramandi : AIR1921Mad423 and again in 1929 condemned by Waller and Krishnan Pandalai, JJ., in Chava Indramma v. Emperor (1929) 2 Mad. Crl. C. 158. There is thus ample authority for so self-evident a proposition. It must surely be obvious that it matters not how an accused's guilt is established. whether by the testimony of eye-witnesses or by the testimony of combined circumstances provided that it is established beyond all reasonable doubt and the measure of proof must be the same in either case. Our attention has been drawn to some decisions the effect of which is as stated in the headnote in Gunduthalayan, In re (1929) 58 M.L.J. 490 : I.L.R. 53 Mad. 585:
Where on a conviction for murder the Sessions Court awarded a sentence lesser than death, the High Court will not enhance the sentence, unless it is satisfied that on the evidence in the case the sentence of death is the only possible sentence which could have been passed by the Sessions Court.
7. As on a conviction for murder the law provides for an alternative sentence we have no doubt that when using the phrase the only possible sentence' the Court intended to expires the view that it was only in cases in which the lower Court had manifestly failed in its duty that the High Court would impose the sentence of death. As stated by Waller, J., in Chava Indramma v. Emperor (1929) 2 Mad. Crl. C. 158, because the lower Courts had failed, in its duty there was no reason why the High Court should do the same. In this case we consider that the trial Court's duty was to impose the sentence of death. There must be cases in which that is manifestly so and perhaps as good an example as can be given is the case of the deliberate murder of a small child for purposes of robbery or any other purpose such as this case. No doubt examples can be multiplied but such an example may be mentioned. For reasons which are wholly unsupportable and which Mr. Vepa did not attempt to support the learned Judge has passed the lesser sentence. There are no other reasons justifying such a course. It is our duty to pass a sentence of death.
8. We therefore enhance the sentence of transportation for life to a sentence of death and direct that the accused be hanged by the neck until he be dead.