Varkey v. State — 1955 DIGILAW 39 (KER)

Judgment :- 1. Kurien Varkki, the appellant in Criminal Appeal 162 of 1954 was tried before the learned Sessions Judge of Parur for committing two murders and he was found guilty of both. Two sentences of transportation for life have been passed against him with the direction that the two sentences shall run concurrently. The case against him was that he caused the death of his wife Aley and his four year old daughter, Mariam by giving to each of them a cut with a heavy chopper and that they died almost instantaneously as the result of the injuries they sustained. While holding the appellant responsible for the two murders, the learned Sessions Judge took the view that the lesser sentence of transportation for life will meet the ends of justice in respect of either and accordingly sentenced him to that punishment. Soon after the appellant filed his appeal, the State filed Criminal Revision Petition 9 of 1955 seeking to enhance the sentence passed by the learned judge into one of death. The appeal and the revision were heard together and we then reserved judgment. 2. The prosecution case is correctly set out as follows in paragraph 2 of the lower court's judgment. "The accused is the son of Pw.1. Pw.1 and his three sons, including the accused, were all living together with their families in Maikkal House, Ancheri-Cherikkal, Thekkumbhagom Muri, Karikkode Pakuthy, Thodupuzha Taluk. The deceased Aley was the wife of the accused. They had two children, Kuriakko and Mariam aged 6 and 4 years respectively. The accused was in Military service for some time. He left the Service and returned to his house a few months prior to the occurrence. He began to suspect the fidelity of his wife, and they used to quarrel often. On 2.12.1952 after 4 P.M., Aley took her two children to the spring (oli) on the eastern side of the house for bath. She also wanted to bring some water for house-hold use. At that time Pw.1 was sitting in the "Chachukettu" (lean-to out-house) on the north-western side of the house and repairing a plough. The accused was sitting on the western verandah of the house. At about 5 P.M., the accused took the chopper (M.O.1) and went to the east. In short while, Pw.1 heard the sound of something heavy falling on the ground and also somebody groaning from the east. The accused was sitting on the western verandah of the house. At about 5 P.M., the accused took the chopper (M.O.1) and went to the east. In short while, Pw.1 heard the sound of something heavy falling on the ground and also somebody groaning from the east. He immediately rushed to the place from which the sound was heard and found Aley and her daughter Mariam lying on the ground with bleeding injuries and the accused standing near them with the chopper in his hand. Pw.1 cried out, and the accused ran towards east with chopper, Pw.1 proceeded to the place where the injured persons were lying, and in short time both of them died, The accused went to the shop building belonging to Pw. 10 where Pw.8 was running a grocery shop. Pw. 10 happened to be there at that time, The accused surrendered the chopper which was soaked in blood and said that he had killed his wife and child. As per the direction of Pw. 10, the hands of the accused were tied together with a cloth and the accused was detained there. After some time, Pw.1 proceeded to Thodupuzha Police Station and gave the first information statement (Ext. A) which was recorded by Pw. 13 who was in charge of the Police Station. He communicated that information to the Circle Inspector, Pw. 14, who proceeded to the scene of occurrence. He found the accused in the shop of Pw. 8. He arrested the accused and took into custody the chopper (M.O.1) and prepared the Mahazar, Ext. F. Inquest was held over the dead bodies (vide Exts. G and H). Pw. 4 conducted the autopsy. Exts. G and D are the certificates dated 3.12.1952. On 4.12.1952 the Magistrate (Pw. 5) recorded the confessional statement of the accused which is Ext. E. After due investigation charge was laid before the First Class Magistrate of Thodupuzha who after the preliminary enquiry has committed the accused to this court to stand his trial". That the appellant's wife, Aley, and daughter, Mariam, died as a result of violence inflicted on them in the evening of 2.12.1952 at a place adjoining the residential compound of his parents with whom the appellant, his wife and their two children lived at that time is amply borne out by the evidence on record. The post-mortem certificate, Ext. That the appellant's wife, Aley, and daughter, Mariam, died as a result of violence inflicted on them in the evening of 2.12.1952 at a place adjoining the residential compound of his parents with whom the appellant, his wife and their two children lived at that time is amply borne out by the evidence on record. The post-mortem certificate, Ext. C, describes the injuries sustained by Aley as follows: "An incised wound 4" in width situated on the left side of neck extending from the inner end of the left collar bone to the upper part of the shoulder blade behind. On cleaning the wound the vertebra on the root of the neck was found obliquely cut from above and downwards to the right. The other structures on the left side were also found cut". In Ext. D, the post-mortem certificate issued for the examination of Mariam's body, the injuries found on it are described thus: "A gaping incised wound on the right shoulder extending as far as the lower border of the right scapula behind and 2 1/2below the right nipple in front. On cleaning the wound the right collar bone and the upper right 7 ribs in front and the inner border of the right scapula and the ribs in front of it are found completely cut. The upper lobe of the right lung is found cut into two parts". These certificates and the testimony of the medical witness, Pw. 4, show that both Aley and Mariam died on account of shock and haemorrhage resulting from the injuries. The injuries clearly show that whoever inflicted them must have done so with a heavy sharp weapon and also applied considerable force in inflicting them. The chopper (M.O.1) which is alleged to have been used for the infliction of these injuries is a heavy one and it is in all 20" long of which a length of 5" is taken up by the wooden handle, another 4" form the iron handle and the blade being 11". The blade was very sharp and at its broadest part the width was 2 3/8" (vide Ext. F.) 3. The main evidence to connect the appellant with these murders is the testimony of his own father, P.W. 1. It was he who gave information about the occurrence to the police. The blade was very sharp and at its broadest part the width was 2 3/8" (vide Ext. F.) 3. The main evidence to connect the appellant with these murders is the testimony of his own father, P.W. 1. It was he who gave information about the occurrence to the police. The Thodupuzha Police Station where the information was lodged was 7 miles away from his house. His statement was recorded there at 1.30 a.m. (3.12.1952) and the evidence he subsequently gave at the trial conforms to it. At about 4 P.M. on 2.12.1952 while he was preparing a handle for a plough he saw the appellant sitting on the western verandah of the house. Along with her children the appellant's wife had gone to a spring or a pond close by and to the east of their compound to give the children a bath and to fetch water for domestic purpose. She had taken a copper vessel with her to bring water. Sometime afterwards Pw.1 saw the appellant going in the direction of the pond and he had a chopper (M.O.1) with him. Not long after that Pw.1 heard a sound from the east of some heavy object falling to the ground and somebody groaning or crying in distress. At once Pw.1 rushed to the direction wherefrom these were heard and to this consternation he found his grand-son Kuriakko running up to him crying and Aley and Mariam lying wounded and profusely bleeding at the foot of a cocoanut tree at a distance of over 80' from his house and over 100' westward from the pond. The appellant was seen standing by their side with the chopper, M.O. 1, raised in his hand. The chopper was blood-stained. Seeing him or hearing his cries the appellant ran away to the east and got into the adjoining rubber estate. Hearing the cries raised by Pw.1 and the women-folk of the house some neighbours gathered there. When Pw.1 approached Aley and Mariam, life was not extinct in them, he saw them shivering and both expired within a few minutes. Sometime afterwards Pw.1 proceeded to the Thodupuzha Police Station to give information about the occurrence. Pw. 2 who was at that time felling timber in the adjoining rubber estate saw the appellant proceeding eastwards through the estate with a blood-stained chopper in his hand. Sometime afterwards Pw.1 proceeded to the Thodupuzha Police Station to give information about the occurrence. Pw. 2 who was at that time felling timber in the adjoining rubber estate saw the appellant proceeding eastwards through the estate with a blood-stained chopper in his hand. He heard the cries of the inmates of the house of Pw.1 and when he went there he found Aley and Mariam lying dead in their compound. He like others who went there before him found an empty copper vessel lying close by. The ground around it was wet. Going eastwards through the rubber estate the appellant reached the grocery shop of Pw. 8 and he found that Pw. 10, the owner of that building was also there. He wanted to hand over the blood stained chopper to Pw. 10, but at the latter's behest one of the persons present there (Pw. 3) took it over from the appellant and handed it over to Pw. 8. The appellant then stretched himself down in the courtyard in front of the shop and told those present there that "he had done all that". When Pw. 10 asked him what it was that he had done he said he had come after finishing off his wife and daughter. The reason for his action was stated by him to be that his wife used to misbehave and he could not bear any longer her running after Pulaya coolies. Pw. 10 sent Pw. 3 to the house of Pw.1 to verify whether it was true that the appellant had caused the death of his wife and daughter. Pw. 10 also asked Pw. 8 and another person who was there viz., Pw. 6, to tie the appellant's hands together with a cloth. Afterwards Pw. 10 himself proceeded to the house of Pw.1 to find out for himself what had happened there and on his return to the shop of Pw. 8 he arranged with Pw. 6, 8 and others to detain the appellant there until after the police came. P.W. 10 is a very respectable person belonging to that locality. Afterwards Pw. 10 himself proceeded to the house of Pw.1 to find out for himself what had happened there and on his return to the shop of Pw. 8 he arranged with Pw. 6, 8 and others to detain the appellant there until after the police came. P.W. 10 is a very respectable person belonging to that locality. His evidence that on the evening of 2.12.1952 the appellant went to the shop of P.W. 8 with a blood-stained chopper in his hand, that he confessed to those present there that he had killed his wife and daughter, that the chopper was surrendered there, that he made arrangements to see that the appellant was detained there till next morning and as to what the cause of killing the wife and daughter was are all corroborated by the evidence of P.Ws. 3, 6 and 8. The learned judged below has believed all these witnesses and during the course of the able argument Counsel for the appellant made before us he had very little to tell us by way of impeaching the credit of their evidence. On the evidence referred to above and which have all been discussed in detail by the learned Sessions Judge, we do not for a moment hesitate to degree with him that the appellant caused the death of his wife and daughter by cutting them both with the chopper, M.O. 1. Pw.1 has identified that chopper as belonging to his house-hold and as the one which the appellant had taken with him when he went out eastwards to the direction of the spring just before the occurrence. The evidence of Pws. 3, 6, 8 and 10 is to the effect that the appellant had surrendered it at the shop of P.W. 8 on the evening of 2.12.1952 and that it was then blood-stained. The learned judge has been well impressed with the evidence of P.Ws.1 and 10 and we cannot find any reason to take a different view regarding the truthful character of their evidence. P.W.1 is the appellant's father and P.W. 10 is, as mentioned earlier, a very respectable inhabitant of the locality paying a land revenue assessment of over Rs. 200/-. To lend assurance to the evidence so far referred to there is the confession (Ext.E) which the appellant made before P.W. 5, who was then the Munsiff-Magistrate at Thodupuzha. P.W.1 is the appellant's father and P.W. 10 is, as mentioned earlier, a very respectable inhabitant of the locality paying a land revenue assessment of over Rs. 200/-. To lend assurance to the evidence so far referred to there is the confession (Ext.E) which the appellant made before P.W. 5, who was then the Munsiff-Magistrate at Thodupuzha. The admissibility of that confession was found by the learned Sessions Judge to be not open to any exception and notwithstanding that it was retracted the learned judge thought it fit to use it to support the other evidence in the case. Counsel for the appellant sought to make a point out of a statement P.W. 5 made in his evidence that the appellant did not request him to record the confession. Reading the deposition of P.W. 5 as a whole, together with the record of the preliminary questions put to the appellant before the confession was recorded, the answers he gave to them and the certificate appended to the confession it is fairly clear to us that by that statement the witness did not mean anything more than that the appellant when he was taken before him did not of his own tell the witness that his confession should be recorded. Regard being had to what the appellant told P.W. 10 and P.Ws. 3, 6 and 8 soon after the occurrence there is no reason to think that the confession was not voluntarily made or that it is not true. It sets out what he did towards his wife and his daughter, why he did that and what his conduct had been after the commission of the crime. In his confession the appellant mentioned that he met P.W. 10 at the shop of P.W. 8, that he confessed to him what he had done, that he surrendered the weapon at the place and that he was detained thee till the police arrived there on the next day. The whole confession or rather the material portions of it are corroborated by the other evidence on record. According to Ext. E, the appellant was proceeding to the police station when he met P.W. 10. 4. The whole confession or rather the material portions of it are corroborated by the other evidence on record. According to Ext. E, the appellant was proceeding to the police station when he met P.W. 10. 4. The nature of the injuries noticed on the bodies of the appellant's wife and daughter, the parts of the bodies the appellant chose to attack and the character of the weapon leave us in no doubt that by his acts the appellant intended to cause the death of his wife and daughter. He has therefore rightly been convicted of murder of both these persons and we confirm the conviction for two separate murders. 5. The next question we have to deal with his that of the sentence. The State has filed the revision for enhancing the sentence into one of death and we have now to address ourselves to the question whether this is a proper case for enhancement. Counsel for the appellant had practically confined his arguments to this aspect of the case. While he did not dispute our powers to enhance a sentence of transportation for life into one of death he laid great emphasis on the point that that power is used very sparingly and that when the Sessions Judge has declined to pass the extreme penalty of the law after giving his reasons therefor, the High Court should not substitute a sentence of death for that of transportation for life passed by the Sessions Judge. A further reason urged by Counsel against our invoking revisional powers to convert the sentence of transportation for life into one of death was that very seldom the extreme penalty of the law was inflicted on an accused person when the case against him rested on circumstantial evidence. We may dispose of this latter argument first. 6. This case does not rest entirely on circumstantial evidence nor has the learned judge based the conviction of the appellant on circumstantial evidence alone. No doubt the important witnesses examined in the case only give evidence of circumstances pointing to the appellant's guilt. The testimony of Pw.1 and the testimony of the group of witnesses headed by Pw.10 establish conclusive circumstances to bring home the guilt to the appellant. No doubt the important witnesses examined in the case only give evidence of circumstances pointing to the appellant's guilt. The testimony of Pw.1 and the testimony of the group of witnesses headed by Pw.10 establish conclusive circumstances to bring home the guilt to the appellant. At the same time the learned judge has also placed reliance upon the extra judicial confession the appellant made immediately after the occurrence to Pw.10 and others and on the judicial confession before Pw. 5 questions relating to the admissibility of the latter confession and the reliability of both the confessions apart, there is no gainsaying that these confessions furnish direct evidence. Further, decided cases show that the view that when a conviction for a murder is based on circumstantial evidence alone, the extreme penalty of the law should not be imposed upon the offender is one found unacceptable by most courts. The following quotations from pp. 50 and 51 of Wills on Circumstantial Evidence (Indian Edition, 1925) may with advantage be quoted here: it ............ For some time back it has been the fashion with a great many people to treat "purely circumstantial evidence" as implying an inherent weakness, and as necessarily more or less unsatisfactorily. There is hardly a case of murder in which a reprieve is sought or a conviction appealed against in which something of the kind is not urged. Fortunately there has been no recent judicial utterance countenancing such a general proposition, and the judges have been fully alive to the fact that circumstantial evidence, like any other, must in every case be tested and weighed, and prevail or not by its own inherent proving force". In re Sheshayya - AIR 1941 Madras 120 - we get a clear summary of the Madras case law bearing on the point by Mockett, J. (Burn, J. concurring). The learned judge first referred to the Sessions Judge's observations about the sentence to be passed in that case and then went on to show that the view was wrong. "The learned (Sessions) Judge dealt with the question of the 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. "The learned (Sessions) Judge dealt with the question of the 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' 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 1941 by Ayling and Kumaraswami Sastri, JJ. in 1915 MWN 34 (AIR 1915 Madras 542), in 1921 by Ayling and Krishnan, JJ., in 44 Madras 443 (AIR 1921 Madras 423) and again in 1929 condemned by Waller and Krishnan Pandalai, JJ., in 2 MCrC 158. (AIR 1929 Madras 667). 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 53 Madras (AIR 1930 Madras 446). "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". 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 express 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 2 MCrC 158 (AIR 1929 Madras 667), because the lower court 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". In the 2nd and the 3rd cases referred to in the above extract the High Court exercised its powers to enhance the sentence of transportation into death. In this case we consider that the trial court's duty was to impose the sentence of death". In the 2nd and the 3rd cases referred to in the above extract the High Court exercised its powers to enhance the sentence of transportation into death. The decision in In re Sheshayya's and the first three cases noted in the above extract make the case clear that the accepted view in the Madras High Court is that where the court is satisfied beyond reasonable doubt about the guilt of the accused, the fact that the evidence is circumstantial and not direct, is not a fact which should per se affect the sentence and there is no unwritten rule or principle standing in the way of the imposition of a death sentence in cases where the evidence is purely circumstantial. In a very early case, In re Venulada Janaki 2 Weir 736 Brandt, J., observed that a consideration with the species of evidence on which the guilt of an accused person is found should not in itself determine the nature of the sentence. In Mohammed Yusif v. Emperor AIR 1930 Sind 225 Wild A.J.C. after reviewing the case in the Sind Judicial Commissioner's Court said at page 244 of the report: "On the other hand in the recent case of Karimbukhsh v. Emperor (11 CrLJ 642) a Bench of this Court on an appeal filed by Government enhanced the sentence of transportation for life to one of death in a case which depended merely on circumstantial evidence. From the above case it is clear that there is no practice of this Court that the lesser sentence should invariably be passed in a murder case where the evidence is merely circumstantial. It is not the practice of the Madras or Bombay High Courts and in England and most of the murderers are hanged on circumstantial evidence. In this case the circumstantial evidence is to my mind very clear and the murderers wee particularly atrocious as the murdered boys were so young and were the step brothers of accused 1. I see therefore no reason why the death sentence should not be confirmed". We consider it unnecessary to multiply authorities on this aspect of Counsel's contention. The present case does not depend entirely on circumstantial evidence though even after discarding the confessions made by the appellant the conviction for their murder can well be maintained. I see therefore no reason why the death sentence should not be confirmed". We consider it unnecessary to multiply authorities on this aspect of Counsel's contention. The present case does not depend entirely on circumstantial evidence though even after discarding the confessions made by the appellant the conviction for their murder can well be maintained. There is no warrant either for the contention that in a case of murder depending entirely upon circumstantial evidence the extreme penalty of the law cannot or should not be imposed on the accused. 7. In a very recent cases, Bissu Mahgoo v. State of Uttar Pradesh AIR 1954 Supreme Court 714 Their Lordships of the Supreme Court point out that it was competent to the High Court in revision to go into the question of sentence and that it was well within the power of the High Court to enhance the sentence of transportation for life into one of death. The principles on which the High Court can or should interfere had been enunciated earlier by Their Lordships in Dalip Singh v. State of Punjab AIR 1953 Supreme Court 364. The relevant passage in the judgment in that case is as follows:- "In a case of murder, the death sentence should ordinarily be imposed unless the trying judge for reasons which should normally be recorded considers it proper to award the lesser penalty. But the discretion is his and if he gives reasons on which a judicial mind could properly found an appellate court should not interfere. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for an appellate court to say, or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate Court but to the trial judge and the only ground on which an appellate Court can interfere is that the discretion has been improperly exercised, as for example where no reasons are given and none can be inferred from the circumstances of the case or where the facts are so gross, that no normal judicial mind would have awarded the lesser penalty". With these principles before us we shall now consider whether in the present case enhancement of the sentence of transportation for life passed by the learned Sessions Judge into one of death is called for. 8. It is our considered opinion that the case of the murder of the appellant's daughter, Mariam unquestionably attracts to itself the concluding portion of the above extract viz., that the facts are so gross that no normal judicial mind would have awarded the lesser penalty. We do not find anything in the judgment of the learned Sessions Judge not to award the death penalty for that murder. A four year old girl, the appellant's own daughter, was mercilessly cut by him with a heavy and sharp chopper on a vital part of her body. The collar bone and the upper right 7 ribs in front and the inner border of the right scapula and the ribs in front of it were found completely cut. The upper lobe of the right lung was found cut into two parts. It is difficult to think of a more inhuman attack by a father on his own child of such tender age. We shall presently consider whether the death penalty was called for the murder of the wife of the appellant, but the aspect we seek to emphasise now is that the learned judge did not think that in regard to the sentence the two murders had to be considered separately. The reasons the learned judge mentions to impose the lesser penalty cannot by any stretch of imagination be applied to the murder of Mariam. Reasons such as absence of a motive or the absence of premeditation or that the appellant might have committed the murder in a fit of impulse and temper can, if at all, apply only to the murder of Aley. 9. Paragraph 13 of the lower court's judgment sets out the above reasons for not awarding the death penalty. The learned judge's line of reasoning makes no distinction between the two murders. The learned judge is not in our view right in thinking that the evidence in the case did not establish a motive for the appellant to murder his wife. Pw. The learned judge's line of reasoning makes no distinction between the two murders. The learned judge is not in our view right in thinking that the evidence in the case did not establish a motive for the appellant to murder his wife. Pw. 9 through whom the prosecution sought to give independent evidence regarding motive may not be a very impressive witness but Pw.1 had said that there used to be occasional quarrels between the appellant and his wife. The appellant's confession before Pw.10 and others clearly showed that what prompted him to attack his wife was her infidelity. That was again reiterated in Ext. E, the judicial confession. The question is not whether there is independent proof that the deceased woman was leading an immoral life but whether the appellant suspected her to be of that character. To brush aside these statements for want of independent corroboration is to take the law relating to the corroboration of retracted confessions beyond all reasonable limits. The rule of prudence observed by courts is only that a retracted confession should be corroborated in material particulars, that is, as to the factum of the crime and as to the identity of the culprit. When there is corroboration on these aspects there is corroboration in the full sense. An approved mode of proving motive is by the party's own admission. The appellant's defence at the trial was a blank denial and that the case was foisted upon him by his enemies. The result is there is no statement even from his mouth that there was any immediate provocation of even the slightest kind. 10. The facts of the case in re Sankappa Shetty AIR 1941 Madras 326 cited by the learned judge are entirely different. There the accused was proved to have been of strange and eccentric character. The two learned judges who first heard the case differed in their conclusions, one of them being for acquitting the accused on the ground of insanity and the other learned judge for convicting him and though that the lesser punishment will meet the ends of justice. The third judge to whom the case was referred agreed with the latter view. The case is of very little use to the present case. A court cannot presume absence of premeditation; circumstances must justify such an inference being drawn. The third judge to whom the case was referred agreed with the latter view. The case is of very little use to the present case. A court cannot presume absence of premeditation; circumstances must justify such an inference being drawn. In agreeing that the lesser penalty alone need be passed the learned judge to whom the case was referred did not attach any importance to the want of any apparent motive. In Promade Chandra Dey v. State AIR 1952 Tripura, 7 which, the learned judge says, followed AIR 1941 Madras 326, no question of the sentence arose for consideration. A case more opposite here would appear to us to be in re Rajagopala Aiyangar AIR 1952 Madras 289 where Mack and Somasundaram, JJ. said that in cases of multiple murders of the kind that they had before them in that case, where an accused was not insane in the sense that he did not know what he was doing but clearly knew what he was about, the mere absence of motive, the apparent senselessness of the murder and the fact that the accused murdered the persons in his own family in cold blood can, in their opinion, furnish no extenuating circumstances to be taken into consideration in mitigation of the sentence. There they were confirming a death sentence. 11. The sentence of death was in our opinion the only possible sentence the learned Sessions Judge could have passed in this case in respect of either murder, and particularly so with respect to the murder of Mariam. The murder of Aley was also in our opinion a calculated and cold blooded one, and committed on account of jealousy and suspicion. The appellant went out with the chopper to meet her and the children. Luckily the son escaped. The case fulfills the exacting standard required by the decision in AIR 1930 Madras 446 and the decision in Emperor v. Mangal AIR 1925 Bombay 268 relied upon there and on which cases counsel for the appellant placed great reliance. 12. Certain observations by Courtney Terrell, C.J. in Sohrai Sao v. Emperor AIR 1930 Patna 247 may usefully be quoted here. That was a case where two brothers were convicted of the murder of the wife of one of them and the Sessions Judge passed the lesser sentence against both. 12. Certain observations by Courtney Terrell, C.J. in Sohrai Sao v. Emperor AIR 1930 Patna 247 may usefully be quoted here. That was a case where two brothers were convicted of the murder of the wife of one of them and the Sessions Judge passed the lesser sentence against both. The High Court enhanced the sentence against both by sentencing them to death and the learned Chief Justice observed: "It would establish a most dangerous and immoral principle to concede to any jealous husband the right to assassinate his wife and escape the gallows: ;it must be noted that those in whose hands is placed the exercise of the royal prerogative of mercy are not trammelled by any legal considerations whatever and may be trusted to exercise their powers. The legislature has wisely not thought fit to entrust judicial tribunals with the prerogative of mercy and judges must remember that they are sworn to administer the law not as they wish it might be but as they find it". These passages and the intervening passages left out are quoted by the learned judge himself in the case reported as Khuda Rajak v. Emperor AIR 1930 Patna 253. The case has also been followed in another Patna case viz. Mosaddi Raj v. Emperor AIR 1933 Patna 101. 13. In our opinion therefore the revision must succeed and the appellant was liable to be sentenced to death even if either murder stood alone. To repeat what we have said earlier no court could countenance the appellant's escape from death penalty for the murder of his daughter. Though we feel loath to invoke our revisional power to the end of sentencing a man to death, we consider it our duty to do so in this case. As Waller, J. put it (AIR 1929 Madras 667) if the Sessions Judge evaded his plain duty there is no reason why we should shrink from doing ours. 14. In the result we dismiss the appellant's appeal and confirm the conviction passed against him for either murder. We allow the revision filed by the State and in place of the sentence of transportation for life imposed by the learned Sessions Judge we direct that the appellant be hanged by the neck till he is dead. Order accordingly. Appeal dismissed. Revision Allowed.