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/s. Daji Yesaba (1915) 17 Bom. L.R. 1072.

(3.) In Emperor V/s. Daji Yesaba this question was raised before Batchelor and Hayward JJ., but their Lordships did not decide it on the merits. They referred to the uniform practice which had prevailed in this Court and proceeded to deal with the merits of the case on the basis that all questions of fact and law had to be decided by them. Hayward J., however, apparently entertained some doubt as to the correctness of this practice and made certain observations in that behalf: ...no considered case has been cited before us," said Hayward J., "in which it was held upon full argument that the evidence in support of the facts found by the jury is laid open by the mere submission to the unrestricted judgment of the confirming Court (p. 1078).