STATE Vs. KOCHAN CHELLAYYAN

JUDGEMENT

(1.) The State has preferred this revision to correct a palpable error made by the learned Sessions Judge of Nagercoil in awarding the sentence upon a person whom he convicted of murder and to have a proper sentence passed by invoking this Court's power to enhance a sentence passed by a subordinate court. The occurrence which gave rise to the case (Sessions case No. 7 of 1952) took place on 25.4.1951 ie., after the Indian Penal Code was extended to this State under the Part B States (Laws) Act, 1951. S.302, Indian Penal Code, enacts that whoever commits murder shall be punished with death, or transportation for life, and shall also be liable to fine. The learned Judge found that the accused before him "had committed an offence of murder punishable under S.302 IPC" and in recording that finding he said:

(2.) It is clear that the learned Judge is in error in passing a sentence of rigorous imprisonment for life where he ought to have imposed a sentence of death or one of transportation for life. Under the Travancore Penal Code as it stood amended by a Proclamation dated 11.11.1944 rigorous imprisonment for life was the only sentence that could have been passed against a person convicted of murder. Evidently the learned Judge overlooked the fact that under the Indian Penal Code the punishment prescribed for the offence of murder was not the same as that the Travancore Penal Code as amended by the Proclamation referred to provided. On the finding that there were no mitigating circumstances the learned Judge ought to have sentenced the accused to death. This is the position which the State takes in the revision.

(3.) However in showing cause against enhancement, Shri. K. Nilakanta Menon advocate, who held a "dock brief" sought to avail of the provision in sub-s. (6) of S.439, Criminal Procedure and attempted to show that on the facts established in the case, the conviction for murder was bad and that, in any event, the trial was vitiated by non compliance with a mandatory provision of the Code, to wit, S.465. This Section prescribes the procedure to be followed when a person committed for trial before a Court of Session or a High Court appears to be of unsound mind and consequently incapable of making his defence. As the arguments before us on this aspect showed that there was merit in the point we did not hear Counsel as to whether there were grounds for the mitigation of the offence. When the arguments concluded we made it clear that we will set aside the conviction and sentence and order or a retrial.