1. These appellants were all tried together in S.C. No. 11 of 1938 on the file of the Sessions Judge, Vizagapatam. The judgment shows that they were committed for trial on charges of house trespass and robbery as well as murder but the learned Sessions Judge very properly postponed the trial for the minor offences and with the aid of Assessors tried the appellants only for the offence of murder.
2. The facts are comparatively simple. The deceased was a son of one Lakshminarayana (P.W. 15) a merchant who lives in the village of Pekki in Vizagapatam District. P.W. 15's family is well-to-do. They are engaged not only in sundry trade but also in money-lending. The loans were mainly secured by the pledge of jewels and these jewels were kept in a bhoshanam box 51/2 cubits long, 2 cubits wide and 2 cubits high. P.W. 15 has two other sons, one elder (P.W. 14), and one Cunnayya younger than the deceased. The father and his sons lived in two houses adjoining one another, one fronting on the Pedda Veedhi and the other fronting on the Nadu Veedhi. One portion is tiled and the other portion is terraced. The bhoshanam box was kept in the tiled portion in a room in which the deceased used to sleep and in which he went to sleep on a cot on the night of the 26th October 1937. The next morning his elder brother (P.W. 14) found the door into the tiled portion of the house unbolted and when he got inside he discovered that his brother had been murdered by being stabbed in the neck. The bhoshanam box had been opened and its valuable contents stolen. A report was made to the Police Station at Bobbili the same afternoon 27th October and at 2 A.M. on the 28th the Police arrived. At the inquest held on the 28th the 1st and 2nd accused were suspected because they had been employed by P.W. 15 and his sons to do various odd jobs in the house. The 1st accused was detained by the Sub-Inspector of Police (P.W. 25) and he made a statement implicating the 2nd, 3rd and 4th accused and thereupon the 3rd and 4th accused were arrested on the same day. The 2nd accused was absconding until the 1st November when he was arrested at 4 P.M. by P.W. 20, a head constable of Bobbili station.
3. The evidence against the accused was partly circumstantial and partly confessional.
4. His Lordship dealt with the evidence and concluded.
5. On this evidence the learned Sessions Judge convicted all the accused of murder. It would have been expected that the conviction would have been followed by a sentence of death. The learned Sessions Judge calls it a diabolical deed. He says:
The murder was brutal, and carefully planned, and reminds one of the days of the Thugs. There is no extenuating circumstance proper.
6. This is quite correct and there is no ground upon which the learned Sessions Judge could with any respect for the law refrain from sentencing the murderers to death. The learned Sessions Judge however goes on to say:
Generally capital punishment is reserved for those who actually deal the fatal blow. But here it will be unjust to sentence accused 4 alone to death. Then the question is whether all the four ought to be sentenced to death. After careful consideration, I am of opinion that in these days, when such murders by a number of persons for committing robbery are rare, and when public feeling is urging the total abolition of capital punishment, it is not necessary to condemn four persons to death for the murder of one man. There are also some rulings of High Courts, by eminent judges, that in such cases no useful purpose is served by sentencing so many persons to death simply to conform to the exigencies of logic, and that a life sentence is the more proper one. So, I sentence all the four accused in this case to transportation for life.
7. The learned Sessions Judge has been influenced by considerations which ought to have no weight whatever with a Judge administering the law. We are not at all satisfied that his statements of fact in the passage quoted are correct. It is not true, we think, to say that such murders by a number of persons for committing robbery are rare. On the contrary such murders are far too common. We are not aware that there is any general public feeling urging the total abolition of capital punishment. There are individuals who have strong views against capital punishment but we think it is quite incorrect to say that the public as a whole is urging the total abolition of capital punishment. Even if it were so, it is no part of the duty of a Sessions Judge to be influenced by public feeling. His duty is to administer the law. The law says that the proper sentence for murder is death and that whenever a person is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reasons why the sentence of death was not passed [Section 367(5), Criminal Procedure Code]. The state of public feeling is not an. admissible reason for refraining from passing the sentence of death. Nor is it permissible to refrain from sentencing the murderers to death merely because their numbers exceed the numbers of their victims. When four persons have together planned and executed the murder of a single person, each of them must be sentenced to death unless there are some legal reasons for not doing so. We do not know of the existence of the rulings of High Courts by eminent Judges to which the learned Sessions Judge refers. There is no question of conforming to the exigencies of logic. The question is one of conforming to the precepts of the law. We must therefore express our strongest disapproval of the pretexts which the learned Sessions Judge has put forward for failing to do his duty in this case. The proper sentence and the only sentence that can legally be imposed in this case on those who are guilty is the sentence of death.
8. But we think that the learned Sessions Judge has erred in convicting the first accused. There is no evidence that the first accused took part in the murder. The only evidence regarding his part in the occurrence comes from his own statement and the statements of the co-accused. All these show that he kept watch outside the house while the other three were inside but they do not show that he knew when they were inside that they were going to murder Chinna Venkataswami. From the fact that when they came out he demanded his share it can at most be inferred that he knew they were going to steal but we do not think it follows that he must have known that in order to commit theft they would be obliged to murder the sowcar. We think there is nothing in the statements of any of these accused to indicate that the first accused shared with the others the common intention of committing murder. We therefore set aside the conviction of the first accused and the sentence of transportation for life passed upon him and order that in so far as the charge of murder is concerned he be set at liberty forthwith.
9. The conviction of the other three accused is undoubtedly correct and we confirm it. The accused have been given notice to show cause why the sentence of death should not be passed upon them. Learned Counsel who has appeared for them is not able to defend the 'reasons' put forward by the learned Sessions Judge for imposing the lesser penalty. Nor is he able to advance any reasons of his own. The most that he can do is to make a plea for leniency. It is not permissible for a judge to indulge himself in leniency in a case like this. We therefore confirm the convictions of the second, third and fourth accused for murder, set aside the sentence of transportation for life and in lieu of that sentence we sentence each of these accused to be hanged by the neck until he be dead.