Emperor vs Bechan Chero and Others

Agarwala, J.—This matter comes before us for confirmation of the sentence of death passed on Bachan Chero, aged twenty-five, on a conviction for murdering Sheojatan Ahir on 1st October 1942. The facts were that Bechan Chero and two other persons Sukar Chero and Ramchela Chero were placed on their trial before the special Judge of Shahabad exercising jurisdiction under Ordinance 2 of 1942. The charge against the three accused was one u/s 396, Penal Code. The learn, ed Judge found all the accused persons guilty and sentenced Bechan to death and Sukar Chero and Ramchela Chero to eight years'' rigorous imprisonment. Then, as he was bound to do u/s 8 of the Ordinance, he submitted the proceedings to the Review Judge. At the same time, he directed that the sentence of death passed on Bechan Chero should not be executed until it had been confirmed by the High Court. The matter then came before the Review Judge who, at that time, was Rowland J. Rowland J. upheld the convictions and confirmed the sentence of death passed on Bechan Chero. Considering that the sentences passed on the other two accused persons were inadequate, he enhanced them to transportation for life. All the accused persons then made an application u/s 491, Criminal P.C., alleging that they were illegally detained and praying for their release. This application was made on 18th March 1943. Subsequently, the Ordinance of 1942 was repealed by Ordinance 19 of 1943, which conferred a right of appeal on all persons who had been convicted by the Special Courts in proceedings under the Ordinance of 1942. Taking advantage of this right of appeal all the accused preferred an appeal to this Court on 11th June 1943. The appeals of the three accused are considered together with the reference for confirmation of the sentence of death passed on Bechan Chero.

The facts which gave rise to this prosecution are that at midnight on 1st October 1942, some 50 or 60 persons attacked the hut of Sheojatan Ahir in village Katror. They beat on the walls and roof of the hut with the result that the inmates were awakened, and the attention of the neighbours was attracted. Sheojatan Ahir and his wife Mangri P.W. 1, emerged from the hut. Sheojatan was immediately shot by one of the dacoits who had a shot-gun in his hand. He died almost at once. Thereafter his wife Mangri was assaulted, stripped and robbed of the ornaments she was wearing. Other articles belonging to Sheojatan and his wife were also removed from the hut by the dacoits. The next day Mangri appeared at the police station, which is sixteen miles away from the scene of the occurrence, accompanied by a number of her neighbours who had been wounded by the dacoits. With them they took the dead body of Sheojatan. Her statement was recorded in the form of a first information at 7-30 on the evening of the 1st. In it she gave a detailed description of the occurrence which has been supported by her evidence at the trial. The names of the wounded neighbours who accompanied Mangri were mentioned in the first information report, and they also were examined at the trial. The evidence of these witnesses is clear not only that a dacoity was committed at Sheojatan''s house on the night in question, but that the accused participated in the crime. Six of the witnesses examined by the prosecution were named in the first information report, namely, witnesses 2, 8, 4, 5, 7 and 8. All of these received injuries at the hands of the dacoits and all of them except No. 2 had their injuries examined by a doctor who has given evidence at the trial. In addition, four other persons claiming to be eye-witnesses were examined, namely Nos. 6, 15, 16 and 17. The evidence of these witnesses appears to me to be clear and convincing. The main ground on which it is attacked is that it is said that the witnesses had deposed at the instigation of Bira Chero, the chaukidar of the village, with whom the accused are said to be on terms of enmity owing to an illicit connection between the chaukidar and some woman of the village.

The evidence discloses that the chaukidar was not present at the time of the occurrence and did not in fact put in an appearance at the scene until early in the morning. By then the eye-witnesses had assembled at the house of Sheojatan and has exchanged with each other information as to what each had seen. It appears that Mangri had disclosed the names of the three accused, alleging that she had identified them, and the injured men had disclosed that they also had identified the same three accused. So far as witnesses 15 and 17 are concerned, they identified only Bechan, while witness 16 claims to have identified Bechan and Sukar. Even if it be true that the chaukidar of the village is on terms of enmity with the accused persons, there is no indication on the record of this case that he has any influence on the evidence which has been given against the accused persons.

In the first place, he did not arrive on the scene until a considerable time after the witnesses had told each other whom they had identified. Secondly, there is no explanation why the witnesses in this case should have been willing to give false evidence against the accused persons, with whom they had no enmity, at the behest of the chaukidar. Thirdly, most of the witnesses are Ahirs, and the remainder, 7 and 8 are Brahmins. There is no reason for witnesses of these two castes to combine with a chaukidar of the Chero class to implicate persons falsely. The evidence, as I have said, is so clear and convincing that I have no hesitation in accepting it. It proves conclusively that Bechan Chero was the man who held the gun which was fired at Sheojatan and which caused his death. The post-mortem discloses that three buck-shots entered the body of Sheojatan and were responsible for his death.

As a matter of law, it was contended by learned Counsel on behalf of Bechan that there is no power to confirm the sentence of death passed on Bechan. The argument is that as Ordinance 2 of 1942 did not contain any provision for confirmation of a sentence of death passed by a Special Judge, Ordinance 19 of 1943 cannot be invoked for that purpose. That matter has been dealt with by a Division Bench of this Court in Jailal Sahu and Others Vs. Emperor, and analogous cases. It was there observed:

In this connexion a special objection was raised by Mr. Awadhesh Nandan Sahay in Criminal Miscellaneous Cases Nos. 81, 82, 83, 86 and 101 of 1943. The petitioners in these oases had been sentenced to death and Mr. Sahay contended that their case was not covered by Section 3 of Ordinance 19 and therefore there was no course open to the Court but to make an order u/s 491(a) of the Code directing them to be brought to trial according to law. Section 4 provides that the sentence of death is to have effect as if it had been passed by a Sessions Judge at a trial held in accordance with the Code. By virtue of Sections 31(2) and 374 such a sentence so passed is of no effect until confirmed by the High Court. Section 3 makes no referenoe to confirmation, it might perhaps have been better if it had, but I do not think the omission is material. An appeal or application in revision does not follow automatically from a sentence, and, therefore the right to appeal and the liability to revision had to be expressly conferred. But under the Code what is generally known as a "Death Reference" follows automatically on the passing of a death sentence by a Sessions Judge. I see no reason why the same consequence should not follow from the sentences which are to have effect as if they had been so passed by a Sessions Judge. It is objected that there is no one to make the reference as the Special Judge has ceased to exist, but the Code does not lay down who is to submit the proceedings to the Court and I see no reason why the proceedings should not be submitted by the person who happens to have custody of them.

Two other points of law were raised by learned Counsel for the accused, The first of these was that a presumption arises against the prosecution u/s 114, Evidence Act, by reason of the non-examination of the chaukidar. Counsel contended that the defence were entitled to have the chaukidar in the witness-box as a witness for the prosecution for the purpose of cross-examining him as to the alleged enmity between himself and the accused. As I have already observed, the chaukidar was not an eye-witness to the occurrence. He did not come on the scene early enough to hear what the eye-witnesses said as to their identification of the persons who have taken part in the offence, and therefore, he was not a material witness at all in this case. The only use he could have been at the trial was to enable the defence to prove that he was at enmity with the accused persons. But it is not necessary for the prosecution to produce witnesses to be examined on the question of enmity between themselves and the accused when they are not material witnesses to the facts which the prosecution have to establish for the purpose of bringing home to the accused their guilt on the charge on which they are being tried. It was next objected that the accused were entitled to a retrial because of the omission to examine them more fully u/s 342, Criminal P.C. It is suggested that the accused should have been specifically asked why it was that so many apparently disinterested witnesses should have given evidence against them and that they should have been specifically asked how they accounted for the numerous injuries suffered by the witnesses examined by the prosecution.

In point of fact, although no specific question was put on the first of these points the accused themselves gave an explanation in the course of their examination. They stated that they had been implicated by the chaukidar. This clearly means that they intended it to be understood that on account of the enmity between themselves and the chaukidar the witnesses had conspired with the chaukidar to depose falsely against them. So far as the omission to ask them for an explanation of the injuries suffered by the prosecution witnesses is concerned, it was clearly unnecessary to put such a question to them in view of the fact that they all denied that they had taken any part in the dacoity, thus implying that the injuries the prosecution witnesses had suffered had been inflicted not by the accused but by whoever took part in the dacoity. There is no sub-stance in either of these points and they are decided against the accused. In the circumstances stated above I would accept the reference and confirm the conviction and sentence of Bechan Chero. His appeal and application u/s 491 are dismissed.

So far as the appeals of Sukar Chero and Ramchela Chero are concerned, a difficulty has arisen by reason of the order enhancing the sentence made by Rowland J. as a Review Judge. It has been contended that the power of review conferred by Section 8 of the Ordinance did not include the power to enhance sentences passed by the Special Courts and that Rowland J.''s order, therefore, has no effect. Three classes of Courts were constituted by the Ordinance of 1942--Summary Courts, Courts of Special Magistrates and the Courts of Special Judges. A right of appeal was conferred in certain cases from the decisions of the Summary Courts and the Courts of the Special Magistrates. No right of appeal was conferred from the decisions of the Special Judges. But in all cases in which a Special Judge passed a sentence of seven years or more he was required to submit his proceedings to the Review Judge.

He was also authorised to submit the proceedings to the Review Judge in cases where he considered that any difficult question arose. The review Section was, in my opinion, clearly intended for one purpose, and one purpose only, namely, to act as a safeguard for persons who had been convicted by Special Courts whose procedure differs from that of the ordinary Courts of the land and was of a summary nature, it being remembered too that the right of appeal of persons convicted by these Courts was at the best of only a limited nature, and in the case of conviction by Special Judges, did not exist at all. I find it, therefore, somewhat difficult to construe Section 8 of the Ordinance as conferring upon the Judge any right to enhance the sentences passed by the Special Courts. Prima facie no Court has the right to interfere with a sentence passed by another Court. The power to enhance a sentence, like the right to appeal, is the creation of statute.

It is clear that no person convicted by a Special Judge had a right of appeal to the Review Judge although the latter had the power to review the proceedings of the Special Judge. Nor in my opinion, did the power to review, confer any right to enhance the sentences passed by the Special Courts. Such a right of enhancement must be conferred explicitly by some statute. The ordinary criminal Courts of the land are constituted under the Code of Criminal Procedure and they are subject to the appellate and revisional jurisdiction of the High Court in whose jurisdiction they are situate. Section 439 of the Code expressly confers upon the High Court the power to enhance the sentences passed by Courts subordinate to it, and it is by virtue of this Section alone that the High Court has power to enhance a sentence passed by a subordinate Court. No such express power was conferred on the Review Judge by the Ordinance. Sitting as a Review Judge he was not sitting as a Judge of the High Court, and, therefore, be could not invoke the powers conferred on the High Court by Section 439.

In my view, therefore, the order which Rowland J. made in the present instance, enhancing the sentences passed on Sukar and Ramchela, was beyond his power. That being so, the original sentences must be taken as the sentences to which these two accused persons are now subject. It is true that Sub-section (3) of Section 3 Ordinance 19 of 1943, provides that when any sentence passed by any of the Special Courts has been altered in the course of review, the sentence as altered is to be deemed to have been passed by the Court which passed the original sentence. But that, in my opinion, can mean only that a sentence as altered by the Review Judge in the proper exercise of his power is to be regarded as the sentence passed by the original Court, and in the present instance the Review Judge went beyond his power. Sub-section (3) cannot be applied so as to give to the sentences passed by him the same effect as the sentences of the original Court. On the evidence, however, we consider that the sentences passed by the original Court on Sukar and Ramchela were entirely inadequate.

It is clear that they went with a gang of dacoits, one of whom was armed with a gun, determined to achieve their object. As soon as the victim they had selected for the robbery made his appearance he was shot dead, and this dastardly crime was immediately followed by an attack on his wife whom they treated in a most shameful manner before she was eventually robbed, not only of the ornaments she had on her person but also of the articles which were in the house. Every person who took part in that dacoity must have known that the gun with which Bechan was armed was intended to be used, and every one of them is liable for the murder by reason of the provisions of Section 396, Penal Code. We have, therefore, decided that notice must be issued to Sukar Chero and Ramchela Chero to show cause why the sentences passed on them should not be enhanced.

The appeals of Sukar Chero and Ramchela Chero and their application u/s 491 will remain pending until the return of the rule for enhancement, and will be heard with the rule. As the question raised on behalf of Bechan regarding the power to confirm the sentence of death passed on him raises a constitutional issue we certify u/s 205, Government of India Act, that this case is a fit one for appeal to the federal Court.

Brough, J.

I agree.