EMPEROR Vs. NARAYAN RAMCHANDRA JARAG

JUDGEMENT

(1.) THIS confirmation case and appeal arise from the sentence of death passed by the learned Sessions Judge at Poona against the appellant. The appellant and another were charged in the Court of the learned Sessions Judge with having committed an offence punishable under Section 302 and Section 302 read with Section 109 respectively. The prosecution case was that on or about the night between August 25 and 26, 1946, the appellant intentionally caused the death of one Yeshwant Sapre by stabbing him with a knife and thus made himself liable to be punished under Section 302 and the case against the other person was that on the same day and about the same time and place he abetted the appellant in the com mission of the said offence of murder. The case against both the accused was tried with the aid of jurors. The jury unanimously returned a verdict of not guilty in regard to the charge against accused No.2. The learned Judge agreed with that verdict and acquitted the said accused of the said charge. As regards the appellant the jury were divided, 5 being of the opinion that he was guilty of the offence charged, while 4 were of the opinion that he was not guilty of the said charge. The learned Sessions Judge took the view that the majority verdict of the jury could not be regarded as perverse and agreed with that verdict. Accordingly, he convicted the appellant of the offence under Section 302 and ordered that he should be hanged by the neck until he was dead. That is how the confirmation case and the appeal by the accused have come before us for disposal today.

(2.) AT the hearing of these matters the learned Government Pleader has raised a preliminary point of law. He has contended that since the accused has preferred an appeal against his conviction and sentence in this case, we should, and in fact ought to, dispose of the said appeal before dealing with the confirmation case, and in disposing of the said appeal our powers would not be wider than those mentioned in Section 423 (2) read with Sub-section (2 ). In other words the argument is that the appeal preferred by the accused can succeed only if it is shown that the charge given by the learned trial Judge to the jury suffered from misdirections or non-directions and that the said misdirections or non-directions resulted in a verdict which is erroneous. If the accused fails to satisfy the requirements of Section 423 (2), his appeal must fail, and in that event the question of confirming the sentence in the confirmation case may have to be decided almost solely on the consideration as to whether the sentence of death is justified or not. The learned Government Pleader has conceded that the uniform practice of this Court has been to hear both the confirmation case and the appeal preferred by the accused together and to deal with the merits of the case on the basis that all material questions of fact and law can be agitated by the accused. He has, however, suggested that this practice is inconsistent with the provisions of the Code and has asked us to decide this point as a matter of law. In support of his contention he has relied very largely on the observations of Hayward J. in Emperor v. Daji Yesaba (1915) 17 Bom. L. R. 1072.

(3.) IT seems to us that in deciding the question as to the powers of this Court while dealing with confirmation cases the fact that the accused in question has preferred an appeal cannot make any material difference. IT is true that the proviso to Section 376 lays down that no order of confirmation shall be made until the period allowed for preferring an appeal has expired, or, if an appeal is presented within such period, until such appeal is disposed of. This proviso is intended to safeguard the right of the accused to make an appeal and to have his case argued by an advocate of his own choice. If the powers of this Court in dealing with confirmation eases are not affected by the limitations imposed by Section 423 (2), the fact that an appeal has been preferred by an accused cannot affect the exercise of those powers. IT would obviously be wrong to hold that the said powers would not be the same in dealing with all confirmation cases alike without reference to the question as to whether the accused has preferred an appeal or not. In that view we think there is no substance in the contention that we must deal with the appeal first before hearing the confirmation case. Both the confirmation case and the appeal arise from the same order of conviction, and if a case is made out for the exercise of the powers of this Court under Section 376 in favour of the accused, those powers will have to be exercised whether the accused has made an appeal or not. In that view it would make no difference even if the appeal preferred by the accused is technically heard before final orders are passed in the confirmation case.