Decided on June 16,1950

Charan Das Narain Singh Appellant
THE STATE Respondents


Khosla, J. - (1.) CHARAN Das, a constable of the National Volunteer Corps, was tried by the learned Additional Sessions Judge of Ferozepore upon a charge of murder under S. 302, Penal Code. Along with him Harnam Singh, Havildar, was also tried upon a charge under S. 302, read with S. 114, Penal Code. The learned Sessions Judge acquitted Harnam Singh and convicting Charan Das under S. 302, Penal Code, sentenced him to transportation for life. Charan Das has come up in appeal to this Court.
(2.) THE charge against the appellant was that he murdered a refugee woman Mt. Rani by shooting her with a rifle on the evening of 14th November 1948. The story for the prosecution briefly is that information was received that some persons were gambling in a tent in the Refugee Camp at Muktsar. The Camp Commandant sent a party to make an enquiry into this matter. The party consisted of Baltej Singh, Supervisor, Refugee Camp (P. W. 3), Lekh Raj (P. W. 4), Charan Das appellant and Harnam Singh. The party arrived outside the tent and surrounded it. Harnam Singh was asked to go inside and see if people were really gambling. Soon after this the report of a gun was heard and Mt. Rani who was inside the tent was found to have been shot dead. Narain Das (P. W. 17) received an injury. The shot had been fired from the rifle of Charan Das appellant, and it was said that Harnam Singh had ordered him to fire the gun and in obedience to these orders Charan Das had shot Mt. Rani dead. Charan Das and Harnam Singh were both accordingly sent up to stand their trial with the result indicated above. At the trial Charan Das admitted that be had fired the shot but pleaded that be had done so in obedience to the orders of his superior officer, Harnam Singh, Havildar.
(3.) THERE can be no doubt whatsoever that Charan Das fired a gun as the result of which Mt. Rani died. On this point we have the evidence of a number of witnesses e. g., Baltej Singh, Lekh Raj, Jhanda Singh (P. W. 5) and Lal Chand (P. W. 6). The appellant himself admitted this part of the prosecution story and nothing further need be said on this account. The only question that remains for determination is whether the appellant is guilty of any offence if it is assumed that be acted in obedience to the orders of his superior. There can be very little doubt that the gun was fired as the result of an order issued by Harnam Singh, Havildar. On this point we have the evidence of Lekh Raj (P. W. 4), Jhanda Singh (P. W. 5) and Lal Chand (P. W. 6). The other witnesses do not say that Harnam Singh issued any orders, but in view of the testimony of these three witnesses I must hold that Harnam Singh issued an order, and whether this order was misunderstood or misconceived by Charan Das appellant the gun was fired as a consequence of the order issued by Harnam Singh. There can, however, be no doubt that the order issued by Harnam Singh was wholly unjustified and unlawful. There was no occasion for firing and, therefore. Charan Das cannot be exonerated from the consequences of his act. To plead that he acted in obedience to the orders of Harnam Singh would not excuse him because the order was unlawful. Obedience of an unlawful order does not exonerate or excuse the person who commits an offence as a consequence of such an order. Therefore, Charan Das is clearly guilty of the offence of murder and his conviction must be upheld. He has been awarded the lesser sentence of transportation for life and we cannot interfere on this score. In view of the peculiar circumstances of this case, however, we consider that this is a proper case in which the Government might interfere under the provisions of S. 401, Criminal P. C. Charan Das is a raw youth of 20. He had apparently been recruited to the National Volunteer Corps recently. He may have had an exaggerated notion of his duties or of the authority wielded by his superiors. In the circumstances, I cannot treat his case in the same way as the case of an ordinary murder, and I would therefore, recommend that the Punjab Government might in their clemency order that Charan Das undergo a sentence of three years' rigorous imprisonment instead of transportation for life which is the only lawful sentence that can be awarded by this Court. Soni, J.;

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