In Re: Govindaswami alias Subbiah Kalingarayar

Mack, J.—This is a strange and somewhat painful case of a youth aged 16 being found guilty of the murder of one Govindan Servai by

cutting his neck with an aruval while he was asleep in his house on the night of 18-7-1951. According to the prosecution and the evidence in this

case the appellant also similarly cut one Malayappa Konan while he was asleep in his house on the other side of the street Malayappa Konan

hacked in the neck also died instantaneously. The learned Sessions Judge of Tiruchirapalli tried the present case only as regards the murder of

Govindan Servai and found him guilty u/s 302, I. P. C. and while of the opinion that his action in cutting an innocent sleeping man in the neck with

an aruval was ""very heinous"" sentenced him to the lesser sentence for reasons which completely fail to convince us. The extenuating circumstance

which appears, to have been found was that the appellant committed this murder in fear that the deceased was intending to make a report against

him at the police station regarding a theft.

The motive evidence in this case may be briefly set out. Appellant was a youth who lived near the house of Govindan Servai and witnessed the

latter counting some money he had borrowed from a Chettiar the morning previous to the murder and putting it into a pot. That night Govindan

Servai''s mother P. W. 1 swore that she saw the appellant stealing the money from a pot and running away with it. She chased him but he made

good his escape. Krisrman Servai P. W. 2 the younger brother of deceased also joined in a vain pursuit. The next morning Govindan Servai

complained to respectable elders of the village including P. W. 12 and the other deceased Malayappa Konan who sent for the appellant and

questioned him. The evidence is to the effect that the panchayat advised Govindan Servai to make a report to the police. It was that night that

Govindan Servai and his respectable panchayatdar Malayappa Konan were fatally cut by an aruval while they were asleep. At 3 a.m. that morning

the appellant was found by the Station-writer P. W. 5 of Karamakudi police station about 4 or 5 miles, from the scene of offence with a blood-

stained aruval, M. O. 1 tucked under his armpit. Appellant also made a judicial confession in which he said that he cut first Malayappa Konan and

then Govindan Servai while they were asleep in their house with an aruval because his mother and his elder sister taxed him at 10 p.m. that night

with stealing this money from Govindan Servai and brought pressure on him to tell the truth to the police informing him that Malayappa Konan was

himself a witness to that theft. He described in his confession how he could not get any sleep and that he fell a victim to a temptation first to cut

these two persons with a bill hook and then to go and surrender himself at the police station. There can be no doubt on the evidence of this

confession and also from the evidence of P. Ws. 1, 2 and 3 that it was the appellant who cut Govindan Servai with an aruval while he was asleep

murderously on the neck with the intention of killing him. The conviction by the learned Sessions Judge is correct. On a perusal of the judgment I

thought it was a fit case in which notice should issue for enhancement of sentence.

My learned brother is opposed on principle to a criminal Bench enhancing the sentence of transportation which the trial Court has seen fit to

impose to the extreme penalty. I fully appreciate his great reluctance to interfere in such a. case though personally I am prepared myself to do this

most unpleasant duty in a proper case where the death sentence, in our opinion, ought definitely to have been passed. In deference to my learned

brother''s view I agree that this appeal should be dismissed without any enhancement in the circumstances.

There appears to be an impression gaining prevalence amongst Sessions Judges that the law of murder has, in recent years, undergone a radical

alteration in the matter of sentence and that the death sentence should not ordinarily be awarded unless the circumstances attaching to the murder

are of a particularly revolting nature in addition to its being premeditated and cold blooded. The law still remains the same. The ordinary penalty for

murder is the death sentence unless some extenuating circumstance can be found to mitigate the extreme penalty and to justify the Court passing

the lesser sentence. In this ease we are unable to find any extenuating circumstances and even the youth of the accused that he is 16 or 17 years

old cannot be taken into consideration as an extenuating circumstance; nor can mere fear or apprehension of a complaint being made against him of

theft be so taken into consideration.

There is a further aspect of the case on which we would like to make some observations. These two cases of alleged murder by the same

appellant one after the other that same night brought as they were into the same confession should obviously have been tried by one and the same

Sessions Judge. The street between the houses of Govindan Servai and Malayappa Konan appears however to have been a boundary between

the districts of Tiruchirapalli and Tanjore and one murder was committed in the jurisdiction of the Sessions division of Tiruchirapalli and the other in

the Jurisdiction of the Sessions division of Tanjore. This appears to have been the only reason why two separate charge sheets were laid in respect

of these murders. The learned Public Prosecutor agrees that there was no impediment to the two murders being fried together u/s 234(1) , Cr. P.

C. and it is indeed obvious that one Court should have dealt with both these murders. He informs us that the other case, when he last received

instructions in February this year, was under commitment in a Magistrate''s Court in Tanjore. We do not of course propose to say anything here

about the merits of the case in which the appellant is charged with the murder of Malayappa Konan. That will take its ordinary course uninfluenced

by any observations made by us in this case on its merits.