STATE OF GUJARAT v. POPAT BIJAL — 1960 DIGILAW 82 (GUJ)

V. B. RAJU, J. ( 1 ) CONFIRMATION case 3 of 1960 and Criminal Appeals 450 and 470 of 1960 will be disposed of by this judgment. They arise out of the judgment of the learned Extra Additional Sessions Judge Ahmedabad in Sessions Case No. 54 of 1960 convicting one Popat Bijal who was accused No. 1 at the Sessions trial under sec. 302 Indian Penal Code for having committed the murder of one Bai Shanta at about 8 p. m. on 5-5-1960 at the village of Transad. He has been sentenced to the extreme penalty of death. The learned Extra Additional Sessions Judge has referred the conviction and sentence to us for confirmation. Popat Bijal has filed an appeal against his conviction and sentence which is Appeal No. 450 of 1960. His wife Bai Shamju who was accused No. 2 convicted under sec. 302 read with sec. 109 Indian Penal Code for having abetted Popat Bijal her husband in committing the murder of Bai Shanta. Bai Shamju has been sentenced to imprisonment for life and she has filed Appeal No. 470 of 1960. . . . . . . . . . . . . . . . . . . . . ( 2 ) THE learned Judge has made a note on the deposition of a witness that the demeanour of the witness is of a person who tried to suppress the truth and favour the accused. It is not clear from the record what exactly there was in the demeanour of the witness to make the Judge infer that the witness was trying to suppress the truth and favour the accused. ( 3 ) MERELY because a witness does not state facts which are incriminatory of the accused and which other witnesses have deposed to it cannot necessarily be inferred that the witness is trying to suppress the truth and to favour the accused. His evidence may be true and that of the other witnesses false. The demeanour of a witness is his bearing or outward behaviour. It is distinct from the impression made on the Judge by the demeanour. Remarks made by a Judge on the demeanour of a witness should relate to the demeanour of the witness. . . . . . . . . . . . . . . . . . The demeanour of a witness is his bearing or outward behaviour. It is distinct from the impression made on the Judge by the demeanour. Remarks made by a Judge on the demeanour of a witness should relate to the demeanour of the witness. . . . . . . . . . . . . . . . . . ( 4 ) WHEN a Chemical Analyser makes a report about the Article which had been sent to him the prosecution must prove to what Articles which had been attached during the investigation of the case the report of the Chemical Analyser relates. The same remarks apply to substances sent to a medical officer and examined by him. Instructions in Criminal Manual issued by the High Court of Bombay 1960 in para 4 of Chapter IV at p. 67 read as follows: ( 5 ) WHENEVER a Medical Officer is questioned about the result of his examination of any person corpse or substance evidence should always be taken to prove that the person corpse or substance examined by him and to the examination of which he testifies is the person corpse or substance in question in the case. ( 6 ) ORDINARILY a Medical Officer gives evidence in the witness box. In the case of a Chemical Examiner in view of the special provisions contained in sec. 510 Cri. Pro. Code his report is admissible in evidence even if he is not examined as a witness. But the same instructions have to be followed in regard to the evidence of a Chemical Examiner reporting the result of his examination of substances or articles sent to him. In such a case also the prosecution must lead evidence to prove the identity of the articles to which the report of the Chemical Analyser relates. The articles sent to the Chemical Analyser are always produced in Court. The police investigating officer must point out what articles he had attached from which accused or from which place or person and also state what number he had given to the article when he sent it to the Chemical Analyser. Questions must also be put to Panch witnesses in whose presence the articles were attached. ( 7 ) IS true that in this case the Chemical Analyser refers to letter No. 1579 dated 11-5-60 regarding seven parcels said to have been despatched per P. C. 337. Questions must also be put to Panch witnesses in whose presence the articles were attached. ( 7 ) IS true that in this case the Chemical Analyser refers to letter No. 1579 dated 11-5-60 regarding seven parcels said to have been despatched per P. C. 337. If the P. S. I. had written that letter to the Chemical Analyser that letter could have been produced in evidence to prove what articles had been received by the Chemical Analyser and what articles were the subject matter of his examination and of his report. We wish to draw the attention of Sessions Judges and Public Prosecutors to the instructions contained in para 4 of Chapter IV of the Criminal Manual of the High Court of Bombay 1960 The same instructions should be followed in regard to articles sent to a Chemical Examiner. . . . . . . . . . . . . . . . . . ( 8 ) THE learned counsel for the appellant has further contended that as the former sub-section (5) of sec. 367 Criminal Procedure Code has been deleted by Act 27 of 1955 although prior to the amendment the normal sentence in murder case was death sentence after the amendment it is in the discretion of the Court whether to sentence the accused to death or to imprisonment of life. As the previous sub-section (5) to section 367 Criminal Procedure Code has been deleted it is not necessary to discuss what was the position of law prior to the amendment. There cane be no doubt that the Court has a discretion in the matter of sentence in murder cases as well as in other cases. There is also no doubt that Judges have to exercise this discretion in a sound judicial manner after considering the nature of the offence the nature of the offender the circumstances in which the offence was committed such as provocation the character of the victim and the motive for the commission of the offence. The discretion is not in any way affected by the amendment to section 367 Criminal Procedure Code. We have therefore to see whether there are any extenuating circumstances or any aggravating circumstances in this case. In this case accused No. 1 is aged 23 years. The discretion is not in any way affected by the amendment to section 367 Criminal Procedure Code. We have therefore to see whether there are any extenuating circumstances or any aggravating circumstances in this case. In this case accused No. 1 is aged 23 years. At the Sessions trial his age is given as 23 and at the committal inquiry his age is given as 30 years. His occupation is labour. He is a married man with his wife living. The deceased was a widow living with her 8 years old son and doing labour for maintaining her son. As regards the manner in which the offence is committed the nature of the injuries has already been described. Apart from inflic7ting a fatal injury the assassin intended to disfigure the victim by cutting off her nose lips and ears the murder is a gruesome and ghastly one. The victim was a poor widow maintaining her small son aged about 8 years. The assassin went into her room when she was taking food and attacked her. Even assuming that she was indebted to him and that she refused to repay the money due to him that would not be an extenuating circumstance. Even assuming that he had made a proposal to marry her and assuming that she refused his proposal that would also not be an extenuating circumstance. The mere fact that she refused the proposal of accused No. 1 for marriage cannot be regarded as an extenuating circumstance. In this case therefore there are no extenuating circumstances but there are several aggravating circumstances already referred to. In the matter of sentence the Courts should use their discretion judicially and Soundly. They have a duty to accused persons not to be unjust or harsh. They must not impose a sentence on an accused person which he does not deserve and which is not commensurate with the gravity of his crime. They have also a duty to administer justice in the interests of the society. They must have a proper regard for all the relevant factors. As already observed there are no palliating or extenuating features but there are several aggravating circumstances. We have therefore no hesitation in confirming the sentence of death passed upon accused No. 1 by the learned Extra Additional Sessions Judge. . . . . . . . They must have a proper regard for all the relevant factors. As already observed there are no palliating or extenuating features but there are several aggravating circumstances. We have therefore no hesitation in confirming the sentence of death passed upon accused No. 1 by the learned Extra Additional Sessions Judge. . . . . . . . ( 9 ) CONVICTION of accused No. 1 and the death sentence confirmed. Accused No. 2 acquitted. .