STATE Vs. BHAWANI SHANKAR

JUDGEMENT

(1.) THIS is a revision by the State praying that the sentence passed upon Bhawani Shankar under Section 302 I. P. C. be enhanced from transportation for life to death. Bhawani Shankar had filed an appeal from. Jail which was dismissed by this Court summarily on the 8th May, 1951. The present revision was filed on the 1st of August, 1951.

(2.) THE prosecution story was briefly this Umaid Bai deceased was a relation of the appellant. THE appellant asked her to adopt him as a son to her husband. She, however, refused to do so. This annoyed the appellant with the result that he went into her house on the morning of the 26th February, 1950. He was armed with an axe. He caused her a number of injuries on the head with the result that she died immediately on the spot. This was seen by Basantilal, a grand-son of the deceased by relation who was in the house at the time. Another grand-son by relation named Bhanwarlal, elder brother of Basantilal was also there, but the elder boy was sleeping at the time, and woke up after the deceased had been injured. THE accused was also seen going out of the house with the blood-stained axe in his hand by a number of other relations, and later the axe was recovered from his house.

(3.) WE now come to the question of sentence. Normally in a case under Section 302 I. P. C. the accused should be sentenced to death, unless there are extenuating circumstances. The learned Sessions Judge has relied on two circumstances, and has given transportation for life to the accused. Considering the nature of the crime, there is no doubt that the normal sentence in this case should have been a sentence of death. That sentence has, however, not been given on the ground that the case depends upon circumstantial evidence, and that the accused is a young man. The learned Judge has referred to -- 'muniandi v. Emperor'. AIR 1915 Mad 542 and -' Benoyendra Chandra v. Emperor', AIR 1936 Cal 73 and says that, according to these two authorities, death sentence should not be given where the case is based on circumstantial evidence. In the Madras case Ayling J. said that the fact that conviction depended upon circumstantial evidence was no reason for not inflicting the death penalty. Kumaraswami Shastri J. also said that he did not desire it to be understood that the court was bound to pass a lesser sentence when the evidence was circumstantial; but he pointed out that in a number of cases the Madras High Court had passed a lesser sentence in cases in which conviction depended upon circumstantial evidence. This case then can hardly be an authority for the view that sentence of death should not be passed in cases in which conviction is based on circumstantial evidence.