P L D 1962 Dacca 46 (PLP)

I examined Abbas Ali and found (1) One cut mark on the upper side of the middle finger of the left hand 2 " x deep caused by a sharp weapon such as 'hashua'. (2) One ecchymosis on the right shoulder caused by a blunt weapon such as 'lathi'. "Daroga went to the locality next morning and held inquest on the dead‑body for forwarding it to Dinajpur morgue for post‑mortem examination. He seized this hurricane Exh. 11 and this blood‑stained earth Exh. XVI by preparing this seizure list in my presence Exh.

2. He seized the other 'alamats' lying on the spot under this seizure list, prepared in my presence Exh.

3. This half‑shirt blood‑stained Exh. XV was seized by him under this seizure list Exh. 4". "Daroga arrested the accused formally and took them into custody. Accused Tasiruddin made a statement to him and led him to a well the east of his house belonging to one Asiran Bibi. Where one man got down and diving in the water brought out this 'hashua' Exh.

1. The well was pointed out by accused Tasiruddin where upon that man was sent down into the well to recover the 'hashua' and he did it. That man was a stranger. None of the neighbourhood was expert in diving. Hence, he was selected for the job. The Daroga (O. C) seized the 'hashua' by preparing this seizure list Exh. 5 in presence of witnesses including myself." He denied in cross‑examination that Tasiruddin did not make any statement to him. He also stated that both Tasiruddin and Mafizuddin were servants of two of his brothers. Dr. Sanauddin Ahmad is a respectable and independent witness. We have no hesitation in accepting his evidence. Incidentally we may mention that the injuries found by Dr. Sanauddin Ahmad on the person of P. W. 2 Abbas Ali Sarkar corroborate the evidence that Mafizuddin also struck a lathi blow on P. W. 2 Abbas Ali Sarkar when he attempted to intervene in the assault on the deceased.

20. Similarly, P. W. 3 Abdul Gafur Sarkar a teacher of a Model Primary School, P. W. 4 Abdur Rahman, P. W. 5 Majibar Rahman and P. W. 6 Nazir Hossain Sarkar have fully corro borated the aforesaid evidence. They are also respectable witnesses and no suggestion was put to them in the cross -examination directed on behalf of the defence as to why these people should bear any ill‑feeling against Tasiruddin or give false evidence against him. It appears that there has been hardly any challenge to their evidence in the trial Court. Even before us, Mr. Chowdhury did not attempt to impeach the credit of the aforesaid witnesses. We, therefore, accept their evidence.

21. Mr. Chowdhury has strenuously urged that we should not place any reliance on the evidence of P. W. 7 Dr. Sanauddin Ahmad to the effect that the condemned prisoner, Tasiruddin, stated to him that he (Tasiruddin) committed the murder, because the deceased did not repay a loan of Rs. 212 given by him to the deceased. Learned Advocate has asked us to reject this part of the evidence of Dr. Sanauddin Ahmad because of the following reasons : (a) because the alleged statement is an extra- judicial confession ; (b) because it is retracted ; (c) because admittedly it was made in the presence of persons who were men of superior status and authority and whose very presence must have created a sense of compulsion in the mind of Tasiruddin ; (d) because it is not known what question or questions were put to Tasiruddin and because neither the alleged statement nor any question put to him was recorded by Dr. Sanauddin Ahmad (e) because of the presence of Tasiruddin's elder brother and co- accused Mafizuddin who had obviously used him as a tool and instrument for his nefarious purpose ; (f) because the motive for the crime alleged to have been given by Tasiruddin, namely, non‑payment of the loan advance to the deceased is a very thin story and unworthy of credit.

22. Although it is difficult to disbelieve P. W. 7 Dr. Sanauddin Ahmad on this point, we think that it is safer not to take into consideration the alleged confession made by Tasiruddin because of the reasons stated above, and more particularly, because the motive for the crime alleged to have been given by him does not appear to be convincing. Whatever might be the motive for the crime, we do not think that non‑payment of a loan had provided such motive. A sum of over Rs. 200 is quite a big amount of money for a domestic servant in a modest village household. The possession of such an amount of money by Tasiruddin is a doubtful proposition and it is still more difficult to believe that such amount was advanced by him as a loan. Besides, the death of the borrower would completely extinguish all possibility of realising the money alleged to have been given to the deceased. The only person who stands to gain by the death of the deceased is the co‑accused and elder brother of Tasiruddin, namely, Mafizuddin, who covets the second wife of the deceased. The trial Court has not used the alleged confession against the condemned prisoner. We will not also rely on such alleged confession.

23. Mr. Chowdhury has further contended that the evidence to the effect that a statement by the condemned prisoner led to the discovery of a hashua from a well pointed out by him should also be ruled out of oar consideration because the attention of the prisoner was not drawn to this evidence in his examination under section 342 of the Code of Criminal Procedure. This contention must be upheld and we will not use this evidence against the prisoner. It now remains for us to consider the medical evidence in this case, which has been given by P. W.

1. Dr. M. A. Jabbar. It is quoted hereunder: ‑ "On 29th April 1960, at 10 a.m. I held post‑mortem exami nation on the body of Masiruddin brought and identified by constable No. 24 Sk. Shahabuddin and No. 170 Jharu Miah, and found the following: (1) Incised wound 6" x 1" x muscles running forwards from the nape of the neck, right side, cutting the lobule of right ear and going deep into the mastoid portion of the right temporal bone. (2) One incised wound 3" x 1" x muscles on the back of the upper part of the neck. (3) One incised wound 7" x 4" (gaping) on the inner part of the right shoulder, going deep cutting all the soft parts the clavicle of the right side, this vertibral column at the level of the 7th carvical vertibrae. (4) Two incised wound 2" x " scalp deep each, oblique in position running down forwards and outwards on the left side of the occipital region. (5) An incised looking wound 2" x 1"' x scalp on the front and upper part of the left parietal region with depressed fracture of the bone under neath. (6) An incised wound levelling on the front of the right thumb cutting the soft parts and bone. Death, in my opinion, was due to the above injuries which were ante‑mortem and homicidal in nature. The body was partially decomposed. Other organs except those mentioned were healthy and intact but for slight decom position. The injuries were sufficient to cause death. The injuries might be caused by this `hashua' (a kind of curved duo) Exh. I"

24. Thus even if we eliminate, out of our consideration, the alleged confession of the condemned prisoner as well as the discovery of a hashua from a well pointed out by him, the rest of the evidence conclusively establishes that the injuries inflicted by the prisoner, Tasiruddin, caused the death of the deceased. The medical evidence quoted above leads to the only inference that Tasiruddin intended to cause such death.

25. The aforesaid evidence discussed, leads us to only conclusion on that Tasiruddin was guilty under section 302 of the Pakistan Penal Code.

26. Before we proceed to consider the next important point urged before us we would like to make a passing reference to one aspect of this case, which has not been considered in the Court below. The impression that we have taken of this case is that the prime mover of the crime that has been committed is the elder brother of the condemned prisoner, namely, his co‑accused Mafizuddin, who has preferred no appeal from a sentence of six months' rigorous imprisonment imposed upon him under section 323 of the Penal Code. Learned Sessions Judge has come to the finding that the evidence in this case does not justify his conviction under section 302/34 of the Code. He has, however, committed to consider the question whether the said Mafizuddin committed an offence under section 302/109 of the Penal Code for having abetted the murder of the deceased for which the condemned prisoner has been convicted under section 302 of the Code. There are materials in the evidence of this case, which calls for such a consideration. However, in view of the steps we propose to take in this behalf, we refrain from discussing this view of the case any further.

27. We shall now consider the question of sentence, which has been passed on the condemned prisoner. Mr. Chowdhury has contended that the lesser sentence, namely, transportation for life, should be awarded to the condemned prisoner because of his early youth and also because it would appear from the evidence in this case that the condemned prisoner was a mere instrument of his clever and astute elder brother, Mafizuddin. On this point Mr. Chowdhury has further urged for our consideration the fact that there is a complete lack of motive on the part of Tasiruddin for the murderous assaults on the deceased. Mr Chowdhury then referred to the following portion of the evidence of P. W. 2 Abbas Ali Sarkar: ‑ "Aphila was 2nd wife of the deceased. Accused Mafizuddin had illicit connection with her. He abducted the woman who was later rescued by the deceased with the help of the Ansar Commander". The above evidence has also been corroborated by P. W. 7 Dr. Sanauddin Ahmad.

28. We have given our most anxious consideration to the question of the sentence that was passed on the condemned prisoner. A long series of decisions of various Courts of the subcontinent of India and Pakistan have discussed the principles, which govern such a question. We shall, however, discuss only some of them in order to re‑state those principles inasmuch as strong and opposite views are often expressed at the Bar and occasionally by Courts below us.

29. In the case of Chit Tha v. Emperor (45 I C 840), in a Division Bench of the Lower Burma Chief Court, Sir Daniel Twomey, C. J. and Ormond, J. have observed as follows :‑ "As to the general principle, we are of opinion that ordinarily youth is in itself an extenuating circumstance in murder cases as in other criminal cases, we refrain from laying down that the lesser penalty should be awarded in every murder case where the accused is below a certain age. Cases of extreme depravity do occur in which the youth of the accused may not be a sufficient reason for imposing the lesser sentence. But the youth of the criminal is a circumstance, which should always be taken into account by Sessions Court in exercising the discretion vested in them by section 302 of the Indian Penal Code. We respectfully dissent from the view suggested in Nga Pyan's case that a Sessions Court, which on the ground of the criminal's youth imposes on him the lesser sentence provided in section 302, is thereby encroaching on the ‑prerogative of the Crown. Having regard to the youth of the present appellant and the circumstances of the case we consider that the sentence passed on him may properly be reduced to one of transportation for life and it is reduced according".

30. In the case of Ghunnai v. Emperor (A I R 1934 All. 132), in a Division Bench of the Allahabad High Court, Young C. J. has observed as follows: - "The case for the Crown has been clearly proved. The learned Judge was correct when he said that it was an inhuman and horrible murder perpetrated in cold blood. We have however seen the appellant in Court. His age is given officially as

18. We have little doubt from his appearance that he is considerably younger. We think that his age is probably 15 or

16. Under these circumstances we do not think that we ought to confirm the sentence of death. In our opinion, however horrible the crime, a boy of his age should not be hanged. At the age 15 or 16 when a boy has just come to the age of puberty, he may do many things than which he would never dream of doing when he was older. It is even possible that he may become a useful citizen."

31. In the case of the Emperor v. Jasha Bewa (11 C W N 904) in a Division Bench of the Calcutta High Court Rampini and Gupta, JJ have observed as follows: ‑‑ "There now remains the question of sentence. There is no doubt that the accused has murdered her husband in deliberate manner. She admits that sae administered a whitish powder to him; and she knew very well that it would kill him. She also admits that she obtained the powder from a neighbour named Ali, who, she says, told her that if she gave it to her husband, he would die and that he, Ali, would then marry her after the nika form. In these circumstances the offence committed by the accused cannot be regarded as anything less than murder, and it was, as already pointed out, ‑a very deliberate murder. Had the accused been of more mature age, we should have thought it our duty to pass on her the sentence of death. But, having regard to the fact that she is a mere girl of 16 years of age, we will not sentence her to the extreme penalty of the law but will direct that she be transported for life, and we accordingly do so."

32. Shadi Lal, C. J., in a decision of a Division Bench of the Lahore High Court, namely, the case of Harnamun v. Emperor (A I R 1928 Lah. 855) has expressed the following opinion: ‑ "The question of sentence, however, requires careful consi deration. On the one hand we have the facts that the prisoner is responsible directly for the murder of Mst. Amar Kaur and constructively for that of Narain Singh, and that the double murder was committed after premeditation and in cold blood. On the other hand, the medical evidence shows that he is a boy of about 17 years of age. I am not prepared to assent to the proposition that youth alone constitutes such an extenuating circumstance as would justify the imposition of the lesser penalty prescribed by the law. We have, however, In this case, the additional circumstance that the prisoner had no personal enmity with either of the victims that he was probably a tool in the hands of their enemies like Kartar Singh who has been acquitted by the learned Sessions Judge. Having regard to all the relevant circumstances I am of opinion that the extreme penalty of the law should not be exacted in this case. I, accordingly, accept the appeal so far as to reduce the sentence of death to one of transportation for life.

33. Again in a Division Bench of the Lahore High Court in the case of Maghar Singh Nahar Singh and another v. Emperor (A I R 1941 La h. 220), Young, C. J. has expressed himself in the following terms: ‑ "The learned Sessions Judge also says that there are several decisions of this Court which say that youth alone is no ground for giving the lower penalty. This is stating the law much too broadly. Youth, undoubtedly in some cases may be a very excellent ground for giving the lower sentence. It is a very rare thing for this Court to sentence a youth of 17 or below to death. It would only be in a very exceptional case that this would be done. In fact, the normal sentence for a youth of this age would be transportation for life. A very strong case, indeed, would have to be made out in order to justify the hanging of a youth of this age. When a youth of this age commits a murder in company with an elder relative that is another excellent reason for giving only transportation for life. We must therefore accept the appeal of Maghar as regards his sentence. We set aside the sentence of death passed upon him and impose instead a sentence of transportation for life; other wise the appeal is dismissed."

34. In the case of Mi. Hein and another v. Emperor (A I R 1933 Rang, 134), in a Division Bench of the Rangoon High Court, Brown, J. has expressed himself thus: ‑ " . . . . . . . the only question for consideration is that of sentence. He gives his age as 18, and that apparently has been accepted by the Sessions Judge, who has not taken any medical evidence on the point. He has been convicted almost entirely on his own confession, and according to that confession he was acting under instructions from, and semi compulsion by, his elder brother, who was the prime mover in the affair and who alone would benefit from the murder. In these circumstances and in view of his youth I think there is sufficient reason for not inflicting the extreme penalty in his case. I would allow the appeal of Mi. Hein and direct that she be acquitted and released so far as this case is concerned. I would confirm the conviction of Pa Three but reduced the sentence in his case to one of transportation for life."

35. In the case of Ghurey and another v. Rez (A I R 1949 All. 342), the learned Judges of a Division Bench of the Allahabad High Court have observed as follows: - "As regards the sentence, we think that the lesser sentence provided by law would be sufficient to meet the ends of justice. We are led to this conclusion by several factors. The appellants are very young in age. Pararu is aged twenty and Ghurey is twenty‑five. The enmity with the deceased was not with the applicants in particular but with Panaru's father Dayal. It is quite possible that the appellants may have attacked Sukhdeo under the influence of Dayal. Then again, as we have already observed, we cannot hold that the appellants intended to cause the death of the deceased. In the circumstances we think that both the appellants should be awarded the sentence of trans portation for life."

36. On this point, there are quite a large number of deci sions, which we have considered, but not quoted here. It seems to us that the principles, which are well‑settled can be stated thus: ‑ (i) The normal sentence in a conviction under section 302 of the Penal Code is death. (ii) In case of extreme youth, namely, of persons in their early or middle teens, youth itself is invariably a sufficient ground for commuting a sentence of death to transportation E for life. (iii) In very rare cases a youth in middle or later teens, is condemned to death. It is only in exceptional circumstance and in cases of extreme depravity that a teen‑ager is awarded a death sentence. (iv) In other cases when a person is of a higher age but quite in early youth, the question of his age alone is not sufficient to justify a commutation of the sentence, and the question, namely, the youth of the person is usually taken into considera tion along with other extenuating circumstances in order to commute a sentence of death passed on such a person. (v) Each case has to be decided on its own particular facts and it is difficult to lay down in precise terms the exact limits of the principles, which would justify the awarding of the lesser sentence. Having regard to the facts and circumstances of a particular case, if the Court feels that a sentence of death should not be executed, it is its duty to commute the sentence to transportation for life. (vi) We may add that we, ourselves do not look at the discre tion left to Court to award the lesser sentence, from the point of view of mere clemency shown by it to the prisoner."

37. In the present case, it transpires from the record of the Committing Court that the brother and co‑accused of the condemned prisoner, namely, Mafizuddin, is older in age. The age of the condemned prisoner has been given as twenty‑three by the learned Sessions Judge. Learned Advocate has submitted that, in fact, he is still younger in age. In any event, it is safe to conclude that the prisoner is quite in his early twenties. The prisoner is not of a very tender age, but he is certainly very young. But the following facts stare us in the face.

38. It is obvious from the conduct of this prisoner as disclosed in the evidence of this case that he is not very matured in mind and certainly not snore mature than an average youth in late teens. We have already stated that we have formed the opinion that the condemned prisoner Tasiruddin was a mere tool in the hands of his astute elder brother, Mafizuddin. There is a lack of any personal motive on the part of the condemned prisoner for the commission of the crime, and it is evident that the person who stands to profit by the death of the deceased Masiruddin is the elder brother, Mafizuddin, who has been let off with a light sentence of rigorous imprisonment for a period of six months on a lesser offence. Taking all these facts into consideration along with the youth of the prisoner, we feel that the sentence of death imposed on him should not be allowed to be executed in this case.

39. We would like to make it clear that we are not laying down any precedent in this case. We have already indicated that no definite `norm' can be laid down and no yard‑stick can be forged, which can be applied to every case when a question of commutation of death sentence has to be considered. We repeat that each case must be decided on its particular facts. We have noticed the cases cited above merely to re‑state the principles enunciated in them.

40. We, therefore, for the reasons indicated above, alter the sentence of death passed on the prisoner, Tasiruddin, to trans portation for life and with this alteration and commutation of the sentence as stated above, the reference is rejected; the appeal is also otherwise dismissed. K. B. A. Appeal dismissed.