STATE Vs. BHAWANI SHANKAR
LAWS(RAJ)-1952-8-1
HIGH COURT OF RAJASTHAN
Decided on August 28,1952

STATE Appellant
VERSUS
BHAWANI SHANKAR Respondents


Referred Judgements :-

EMPEROR V. JORABHAI [REFERRED TO]
MUNIANDI V. EMPEROR [REFERRED TO]
EMPEROR V. KOYA PARTAB [REFERRED TO]
MOHAMMADI GUL ROHILLA V. EMPEROR [REFERRED TO]
MANGAL NARAYAN V. EMPEROR [REFERRED TO]
GUNDUTHALAYAN V.EMPEROR [REFERRED TO]
NGA CHIT TIN V. THE KING [REFERRED TO]
RAMLAKHAN V. EMPEROR [REFERRED TO]
EMPEROR V. DEBICHARAN [REFERRED TO]
NGA BO THIN V. EMPEROR [REFERRED TO]
TUN KHINE U V. THE KING [REFERRED TO]
EMPEROR V. ATTA MOHAMMAD [REFERRED TO]
SARASWATHI AMMAL VS. RAJAGOPAL AMMAL [REFERRED TO]
CHANDRIKA VS. REX [REFERRED TO]
BENOYENDRA CHANDRA PANDEY VS. EMPEROR [REFERRED TO]


JUDGEMENT

Wanchoo, C. J. - (1.)THIS is a revision by the State praying that the sentence passed upon Bhawani Shankar under Section 302 I. P. C. be enhanced from transportation for life to death. Bhawani Shankar had filed an appeal from. Jail which was dismissed by this Court summarily on the 8th May, 1951. The present revision was filed on the 1st of August, 1951.
(2.)THE prosecution story was briefly this Umaid Bai deceased was a relation of the appellant. THE appellant asked her to adopt him as a son to her husband. She, however, refused to do so. This annoyed the appellant with the result that he went into her house on the morning of the 26th February, 1950. He was armed with an axe. He caused her a number of injuries on the head with the result that she died immediately on the spot. This was seen by Basantilal, a grand-son of the deceased by relation who was in the house at the time. Another grand-son by relation named Bhanwarlal, elder brother of Basantilal was also there, but the elder boy was sleeping at the time, and woke up after the deceased had been injured. THE accused was also seen going out of the house with the blood-stained axe in his hand by a number of other relations, and later the axe was recovered from his house.
The Sessions Judge, on a consideration of the evidence, convicted the accused under Section 302 I. P. C. , but sentenced him to transportation for life on the ground that the evidence in the case was circumstantial, and also because the accused was a young man, and relied on two cases with which we shall deal later on.

The first question that arises in this case is whether we can hear learned counsel for the accused under Section 439 (6) Cr. P. C. on the merits after we had dismissed the jail appeal summarily under Section 421 Cr. P. C. Section 439 (6) reads as follows: " Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under Sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction. " On a plain reading of this section, the accused is certainly entitled to show cause against his conviction when he has been asked to show, cause why his sentence should not be enhanced. But it has been urged on behalf of the State that in view of the fact that we have already dismissed the jail appeal of the accused summarily, he is no longer entitled to show cause against his conviction. Reliance in this connection is placed on -- 'emperor v. Koya Partab', AIR 1930 Bom 593 (2 ). In that case, the accused presented jail appeal which was dismissed summarily under Section 421 Cr. P. C. Notice was then issued to the accused to show cause why the sentence should not be enhanced. A question then arose whether the accused could show cause against his conviction also in view of Section 439 (6) Cr. P. C. It was held that where an appeal was presented and dismissed either after hearing or summarily, it was not open to the accused in showing cause why the sentence should not be enhanced to go again into the merits. An earlier Bombay case -- 'emperor v. Jorabhai', 50 Bom 783 was relied upon, the only difference being that in the earlier case the previous hearing was on the merits. The reasoning in this case is based on Section 430 Cr. P. C. which provides that judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXII of the Code of Criminal Procedure Code. 5-6. This case certainly supports the view urged on behalf of the State; but in some cases a distinction has been drawn between cases where the previous dismissal was on the merits, and those in which the previous dismissal was summary. In -- 'emperor v. Atta Mohammad', AIr 1945 Lah 130 (SB) notice was issued to an accused to show cause why his sentence should not be enhanced. Before that a revision filed by him against his conviction had been dismissed summarily. It was held that notwithstanding that dismissal the accused was entitled to show cause under Section 439 (6) Cr. P. C. Section 369 Cr. P. C. was considered and was held not to bar the court from hearing the accused under Section 439 (C ). As for Section 430 Cr. P. C. , it was pointed out that that applied only to appeals and not to cases of revision. One of the Judges Mahajan J. (now Judge of the Supreme Court) did not say anything on the point whether a decision on the appellate side of the High Court would bar the exercise of the right under Section 439 (6 ).

The question whether the accused can be heard even though his jail appeal was dismissed summarily depends on the interpretation of Sections 369 and 430 and 439 (6) Cr. P. C. We have already set out Section 439 (6) above Section 369 reads as follows: " Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error. " Section 430 roads as follows: "judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXII. "

It has generally been held by the High Courts that the right, given under Section 439 (6) to an accused to show cause against his conviction when a notice of enhancement of sentence is issued against him, is equivalent to a right of appeal, and that an accused can, under that provision, ask for acquittal. At the same time, this right of showing cause and asking for an acquittal cannot be unrestricted, for it may sometimes happen that the accused might have been heard on the merits in revision or in appeal by the High Court and his revision or appeal might have been dismissed and thereafter a notice of enhancement might have been issued. In such a case it is obvious that the accused cannot ask the High Court to hear him on the merits a second time. Therefore, the right given under Section 439 (6) can only be availed of if the accused has not already shown cause and been heard on the merits. It was pointed out by Spencer J. in --'re. Anif Sahib', AIr 1925 Mad 993 that though the words "unless he has already done so" do not occur at the end of Sub-section (6), it must be assumed that they are implied from the ordinary presumption as to the finality of orders in criminal proceedings. If we may say so with respect, this appears to be the true interpretation of Section 439 (6), and an accused to whom a notice has been issued, can show cause against his conviction under that subsection, if he has not already done so in appeal or revision.

The question that arises then is whether it can be said that the accused has shown cause against his conviction where a jail appeal filed by him, or a revision filed by him, has been summarily dismissed without giving him a hearing either to him or to any counsel appearing on his behalf. It seems to us that put in this form the question can be answered easily and the answer is that where the accused has not been heard in support of his appeal or revision, it cannot be said that he has been given an opportunity to show cause against his conviction. When he is entitled under Section 439 (6) to show cause against his conviction he is also entitled to be given an opportunity to do so. Where however an appeal from jail is dismissed summarily under Section 421, it cannot be said that the accused has been given an opportunity to show cause against his conviction. Same applied to a revision which is dismissed summarily without giving an opportunity to the accused or his counsel to be heard.

We would, however, like to point put that the mere fact that an appeal or revision is dismissed summarily would not necessarily mean that no opportunity was given to the accused to show cause, because it is open to this Court to dismiss an appeal or revision summarily even after hearing the accused or his counsel, and where it appears that the accused or his counsel has been heard even though the dismissal is summary, the accused would not in our opinion, be entitled to show cause and to be heard a second time under Section 439 (6 ). But where, as in this case, the accused was never heard, and his appeal was summarily dismissed under Section 421, it cannot be said that he had been given an opportunity to show cause against his conviction once and, therefore, cannot be given a second opportunity for that purpose.

The only question that remains then is whether Section 369 or 430 will bar an opportunity being given under Section 439 (6) in a case where the appeal or revision was dismissed summarily without giving a hearing to the accused. It is urged that if we now hear the accused and come to a conclusion different from the one we arrived at when we dismissed the jail appeal, we would be altering or reviewing the decision, and this is precluded under Section 369. The simple answer to this. In our opinion is that Section 369 itself provides that the Court cannot alter or review its judgment save as otherwise provided by the Code. Section 439 (6) is, in our opinion, saved by the words "save as otherwise provided by this Code" in Section 369, and if the accused has not been given an opportunity to be heard on the previous occasion, he is entitled to be heard under Section 439 (6), and alteration or review of the judgment thereafter would not be against the provisions of Section 369. We are supported in this view by the observations of Mahajan J. in -- 'atta Mohammad's case', AIR 1945 Lah 130 cited above.

We now turn to the effect of Section 430. The argument is that Section 430 provides that judgments of an Appellate Court shall be final, and, therefore, the judgment, by which we dismissed the jail appeal summarily was a final judgment, and could not, in any way, be altered or reviewed under Section 439 (6 ). We have to see, therefore, what exactly is the meaning of the expression "judgments. . . shall be final. " It has generally been held by the High Courts that expressions like these only mean that the judgment shall not be open to any further appeal. But these words do not take away the power of the High Court to interfere with it otherwise than in appeal. Reference in this connection may be made to -- 'chandrika v. Rex', AIR 1949 All 176. This conclusion is supported by the exceptions which are mentioned in this very section, viz. , Section 417 and Chapter XXXII. Section 417 refers to an appeal by the State Government, and Chapter XXXII deals with references and revisions. This section thus provides that an order of an Appellate Court shall be final except where it may be challenged in appeal by the State Government, and in reference and revision by any one entitled to do so. The section appears in the chapter of appeals and obviously prohibits interference by higher courts except in the manner provided in the section itself. It does not however, in our opinion, prohibit a reconsideration by the same court, if that reconsideration can be justified under any other provision of the Code. It may be mentioned that Section 439 (6) appears in chapter XXXII, and therefore if it is open to the High Court to reconsider a matter under that section, and if Section 369 is not a bar, we do not think that Section 430 would bar us from hearing an accused to whom a notice of enhancement has been given.

On the consideration, therefore, of these three provisions and the authorities, we are of opinion that if an accused person has already been heard and thus given an opportunity to show cause against his conviction, whether it be in appeal or in revision, and whether the dismissal is summary or on the merits, he cannot be heard a second time under Section 439 (6), as the principle of finality of orders in criminal proceedings will apply. But if the accused has not been heard at all, and given no opportunity to show cause against his conviction, and his jail appeal has been dismissed under Section 421, or his revision has been dismissed, he is, in our opinion, entitled to ask the court to hear him, and thus allow him to show cause under Section 439 (6) if a notice of enhancement is issued to him. In this case, therefore, as the accused was not heard when we dismissed the appeal under Section 421, he is entitled to be heard, and we have heard learned counsel appearing for him.

The next question is whether we can entertain the application for enhancement of sentence when we have already dismissed the appeal summarily under Section 421. Learned counsel for the accused urges that having disposed of the appeal summarily under Section 421, we have no further jurisdiction left to entertain this application for enhancement, for it must be presumed that we must have considered the question of sentence also when dealing with the jail appeal. This argument is somewhat inconsistent with the argument on behalf of the accused under Section 439 (6) Cr. P. C. However, learned counsel relies on -- 'state v. Kalu', AIR 1952 Madh B 81 (FB ). The judgment of one of the learned Judges in that case certainly supports the view put forward by learned counsel. But that was a Full Bench decision, and the learned Chief Justice, though agreeing with the final order, rested his decision on the facts of that particular case, and did not express any opinion on the legal questions involved. The second learned Judge merely said "i agree", and it is not clear whether he was agreeing with the learned Chief Justice, or with the other learned Judge. Thus this case, though it is a Full Bench case, has only the authority of one learned Judge for the proposition which is being urged on behalf of the accused. There are, however, a large number of cases of other High Courts which lay down that there is nothing to preclude a court from hearing an application for enhancement even though an appeal may have been dismissed previously. Reference in this connection may be made to (1) -- 'mohammadi Gul Rohilla v. Emperor', AIr 1932 Nag 121 (FB) (2) -- 'ramlakhan v. Emperor', AIR 1932 Pat 126 (3)-- 'emperor v. Debicharan'. AIR 1942 All 339. Further the cases of -- 'jorabhai' 50 Bom 783 and -- 'koya Partab'. AIR 1930 Bom 593 (2) already cited also support the same view. The reasoning behind ail these cases is that when an appeal is dismissed, whether summarily or after hearing on the merits, the Court does not generally consider the question of enhancement. Therefore, it can certainly entertain an application for enhancement under Section 439 (6 ). We are, therefore, of opinion that the present application for enhancement of sentence is maintainable.

We have heard learned counsel on the question whether the conviction is correct or not. It is enough to say that the case against the accused is proved beyond all reasonable, doubt. (After considering the evidence his Lordship concluded:) We are, therefore, of opinion that the accused has been rightly convicted.

(3.)WE now come to the question of sentence. Normally in a case under Section 302 I. P. C. the accused should be sentenced to death, unless there are extenuating circumstances. The learned Sessions Judge has relied on two circumstances, and has given transportation for life to the accused. Considering the nature of the crime, there is no doubt that the normal sentence in this case should have been a sentence of death. That sentence has, however, not been given on the ground that the case depends upon circumstantial evidence, and that the accused is a young man. The learned Judge has referred to -- 'muniandi v. Emperor'. AIR 1915 Mad 542 and -' Benoyendra Chandra v. Emperor', AIR 1936 Cal 73 and says that, according to these two authorities, death sentence should not be given where the case is based on circumstantial evidence. In the Madras case Ayling J. said that the fact that conviction depended upon circumstantial evidence was no reason for not inflicting the death penalty. Kumaraswami Shastri J. also said that he did not desire it to be understood that the court was bound to pass a lesser sentence when the evidence was circumstantial; but he pointed out that in a number of cases the Madras High Court had passed a lesser sentence in cases in which conviction depended upon circumstantial evidence. This case then can hardly be an authority for the view that sentence of death should not be passed in cases in which conviction is based on circumstantial evidence.
In the Calcutta case it has not been laid down as a general principle that death sentence should not be passed in cases where conviction is based on circumstantial evidence. All that appears is that at the end of his judgment Lort-Williams J. said at page 80 that in consideration of certain facts and circumstances of this case, which depended solely upon circumstantial evidence, and in the hope that that course might lead to the discovery and apprehension of the actual perpetrator of this atrocious crime, they did not confirm the sentence of death.

It is enough to say that the fact that a conviction in a, particular case is based upon circumstantial evidence only is no ground for not imposing the death penalty if it is the proper sentence. It may also be pointed out that in this case the conviction does not solely depend upon circumstantial evidence. Even if there was such a principle, it cannot apply to this case, for there is the direct testimony of Basantilal who actually saw the deceased being murdered. The Judge was, therefore, not right in not giving the sentence of death on this ground.

The next ground taken by the Judge was that the accused was a young man. There is no doubt that in a number of cases the youth of the accused has been taken into account in giving the lesser penalty. But the accused in this case was 28 years old, and it cannot be said, therefore, that he was so young that his age must be taken into account as an extenuating circumstance. There is thus no extenuating circumstance in this case, and the proper sentence that should have been passed on the accused was the sentence of death.

The last question to which we address ourselves is whether we should now enhance that sentence. It may be pointed out that the crime was committed in February, 1950. The accused was convicted by the Sessions Judge in April 1951. The application for enhancement of sentence was made in August, 1951, and has come up for decision in August 1952, exactly a year afterwards. Learned counsel for the accused has cited a number of cases in which delay in hearing the application for enhancement of sentence has been a ground for not enhancing the sentence. Reference may be made to (i) -- 'nga Bo Thin v. Emperor'. AIR 1937 Rang 254, (ii) -' Tun Khine U v. The King', AIR 1938 Rang 331, (iii) -- 'nga Chit Tin v. The King', AIR 1939 Rang 225. Delay was also taken into account in not inflicting the sentence of death in -' Benoyendra Chandra Pandey's case', AIR 1936 Cal 73 cited above.

In some of these cases there were circumstances other than mere delay in disposal of the appeal or revision which induced the court to give the lesser penalty or not to enhance the sentence passed by the Sessions Judge. In the case of -- 'nga Bo Thin v. Emperor', AIR 1937 Rang 254, the observations were-" It is desirable to say quite clearly that where a Sessions Judge passes a more lenient sentence in contravention of the rulings of law which are laid down from time to time for the guidance of those dealing with criminal cases, this Court will interfere and will enhance the sentence. At the same time, in this particular instance we think that we should not interfere. There was an absence of premeditation, not such, we think, as to make it wrong to pass the death sentence, but such as might well have weighed with other authorities in exercising clemency. Three months have elapsed during which the appellant has believed that his life would be spared and the learned Assistant Government Advocate does not press upon us to enhance the sentence. " Three cases were referred to by Roberts C. J.-- (i) -- 'mangal Narayan v. Emperor', AIR 1925 Bom 268, (ii) -- 'gunduthalayan v. Emperor', AIR 1930 Mad 446, (iii) -- 'nga Tun Min v. Emperor', Cri. A. No. 1026 of 1934 (Rang. ).



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