Lets Kill Gandhi

by Gandhi, Tushar A.

  'Dattatreya S. Parchure accordingly is "guilty" (1) u/s 120-B of the Indian Penal Code read with Section 302 of the Code and (2) u/s 109 of the Indian Penal Code read with Section 302 of the Code.

  'The main offences established against the accused are u/s 120- B of the Indian Penal Code read with Section 302 of the Code, u/s 115 of the Indian Penal Code read with Section 302 of the Code and under Section 302 of the Indian Penal Code or under Section 109 of the Indian Penal Code read with Section 302 of the Code. The subsidiary offences established against the accused are under Section 19 of the Indian Arms Act and under Section 3, 4(b) and 5 of the Explosive Substances Act.

  'Chapter V-A comprising Section 120-A and 120-B was enacted by the Indian Criminal Law Amendment Act of 1913 and was enacted to assimilate the Indian to the English Criminal Law. According to the English Criminal Law a conspiracy to commit felony merges in the felony, if committed. The contention, as such, on behalf of the defence is that the accused cannot be convicted under Section 120-B of the Indian Penal Code read with Section 302 of the Code as well under Section 109 of the Indian Penal Code read with Section 302 of the Code.'

  Harrison in his Law of Conspiracy (Edition 1924) on page 73 lays down as follows:

  'If a conspiracy to commit a crime is actually carried out, the conspiracy is not merged in the crime, and it is technically possible for the accused to be indicted twice, once for the conspiracy and once for the crime (as explained by Lord Campbell in O'Connell v. Reg. (1844) II CI. And F. 155) but this is discouraged by Judges as being unfair to the accused (see R.V Boulton (1871) 12 Cox 87). This rule does not, however, apply to conspiracies to commit a felony, and if the agreement is carried out and the felony is actually committed, then the conspiracy is merged therein, by virtue of the statute 14 and 15 Vict, c.100, s.12.'

  No such law has been made applicable to India. The rulings, on the other hand, forthcoming on behalf of the prosecution go to show that the practice so far adopted by the courts in India has been to convict one or both in regards to the offence of conspiracy as well as in regards to the offence of abetment by conspiracy but to pass the sentence in regard to the latter offence only. 35 Cr. L.J. 322 and 39 Cr. L.J. 452 clearly go to show that an accused could be convicted both for conspiracy and abetment of conspiracy but a separate sentence for conspiracy is not called for. The defence have drawn my attention to 39 Cr. L.J. 266 which lays down as below:

  Section 120-B, Penal Code, only applies where no offence has been actually committed and it is only in latter rare case where no crime has been committed in pursuance of a criminal conspiracy that sanction to initiate proceedings is necessary as some safeguard against frivolous prosecution. Where, however, the matter has gone beyond the stage of mere conspiracy and offences are alleged to have been actually committed in pursuance thereof. S.S.120-A and 120-B, are wholly irrelevant. Conspiracy is one form of abetment and where an offence is alleged to have been committed by more than two persons, such of them as actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under S. 109, Penal Code.'

  This is a single Judge ruling of the Madras High Court, while the ones cited on behalf of the prosecution are the Division Bench ruling of the Lahore High Court and the ruling Privy Council. The Court is thus bound by 35 Cr.L.J. 322 and 39 Cr. L.J.452.

  Some of the accused have been held guilty under Section 120-B of the Indian Penal Code read with Section 302 of the code and under Section 115 of the Indian Penal Code read with Section 302 of the Code, and some of the accused have been held guilty under Section 120-B of the Indian Penal Code read with Section 302 of the Code, Under Section 115 of Indian Penal Code read with Section 302 of the Code and under Section 109 of the Indian Penal Code read with Section 302 of the Code. Separate sentences, in the circumstances, need not be passed under Section 120-B of the Indian Penal Code read with Section 302 wherein a person stands convicted under Section 120-B of the Indian Penal Code read with Section 302 of the Code as well as under Section 109 of Indian Penal Code read with Section 302 of the Code. On the same principle, in my opinion, separate sentences also need not be passed wherein a person stands convicted under Section 115 of the Indian Penal Code read with Section 302 of the Code as well as under Section 109 of the Indian Penal Code read with Section 302 of the Code. However, an altogether different position arises wherein a person stands convicted under Section 120- B of the Indian Penal Code read with Section 302 of the Code as well as under Section 115 of the Indian Penal Code read with Section 302 of the Code, The minimum punishment that could be awarded under Section 120-B of Indian Penal Code read with Section 302 of the Code is "transportation for life", but maximum punishment that could be awarded under Section 115 if the Indian Penal Code read with Section 302 of the Code, wherein no hurt is caused, is "seven years".'

  A DELIBERATE ACT

  'The act of Nathuram V. Godse in committing the murder of Mahatma Gandhi was a deliberate and a calculated one. No extenuating circumstances have been pointed out nor could have been pointed out on his behalf. The only sentence, in the circumstances, that could be passed on him under Section 302 of the of the Indian Penal Code is the sentence of death.

  'The act of Narayan D. Apte in abetting the offence of the murder of Mahatma Gandhi is in no way less heinous. He throughout took the lead at each stage of the crime and at the most crucial moment either just ran away from the scene or just absented himself from the scene of the crime. Had it not been for his brainwork the murder of Mahatma Gandhi probably would never have been committed. The only sentence, in the circumstances, that could be passed on him under Section 109 of the Indian Penal Code read with Section 302 of the Code is the sentence of death.

  'So far as Vishnu R. Karkare, Gopal V. Godse and Dattatreya S. Parachure are concerned, it would, in my opinion, meet the ends of justice if they are sentenced each to undergo transportation for life under Section 109 of the Indian Penal Code read with Section 302 of the Code. This is the minimum sentence awardable under Section 109 of the Indian Penal Code read with Section 302 of the Code.

  'Now the question is what sentences should be awarded to Madanlal K. Pahwa and Shankar Kistayya under Section 120-B of the Indian Penal Code read with Section 302 of the Code under Section 115 of the Indian Penal Code read with Section 302 of the Code. It would, in my opinion, meet the end of justice if they are sentenced each to undergo transportation for life under Section 120-B of the Indian Penal Code read with Section 302 of the Code. This is minimum sentence awardable under Section 120-B of the Indian Penal Code read with Section 302 of the Code. There is nothing on the record of the case to show as to why a lenient view at all be taken in regard to the offence punishable under Section 115 of the Indian Penal Code read with Section 302 of the Code. Madanlal K. Pahwa and Shankar Kistayya, in the circumstances, should be sentenced each to undergo seven years' rigorous imprisonment under Section 115 of the Indian Penal Code read with Section 302 of the Code.'

  LENIENCY FOR SHANKAR

  'Shankar Kistayya is the servant of Digambar R. Badge, whatever he did more or less in obedience to the orders of his master Digambar R. Badge. Unless it was for Digambar R. Badge he would never have been approached by the other accused to join the conspiracy. Shankar Kistayya, in the circumstances, certainly deserves some leniency. I would accordingly recommend that his sentence of transportation of life under Section 120-B of the Indian Penal Code read with Section 302 of the Code may be commuted to seven years' rigorous imprisonment under Section 401 and 402 of the Code of Criminal Procedure.

  'It would, in my opinion, meet the ends of justice if Nathuram V Godse and Narayan D. Apte are sentenced each to undergo two years rigorous imprisonment under Section 19(c)of the Indian Arms Act or in the alternative under Section 114 of the Indian Penal Code read with Section 19(c) of the Indian Arms Act, if Nathuram V. Godse is sentenced to undergo two years' rigorous imprisonment un
der Section 19(f) of the Indian Arms Act and if Narayan D. Apte and Vishnu R. Karkare are sentenced each to undergo two years' rigorous imprisonment under Section 114 of the Indian Penal Code read with Section 19(f) of the Indian Arms Act.

  'It would, in my opinion, meet the ends of justice if Nathuram V. Godse, Narayan D. Apte, Vishnu R. Karkare, Madanlal K. Pahwa, Shankar Kistayya and Gopal V. Godse are sentenced each to undergo three years rigorous imprisonment under Section 5 of the Explosive Substances Act or in the alternative under Section 5 of the Explosive Substances Act read with Section 6 of the Act five years' rigorous imprisonment under Section 4(b) of the Explosive Substances Act read with Section 6 of the Act, if Nathuram V. Godse, Narayan D. Apte, Vishnu R. Karkare, Shankar Kistayya, Gopal V. Godse are sentenced each to undergo seven years' rigorous imprisonment under Section 3 of Explosive substances Act read with Section 6 of the Act and if Madanlal K. Pahwa is sentenced to undergo ten years' rigorous imprisonment under Section 3 of the Explosive Substances Act.

  CONFIRMATION BY HIGH COURT

  'Now the question is whether the sentences of death are subject to confirmation by the Hon'ble High Court. It has already been stated above that the trial of the case has been under provisions of the Bombay Public Security Measures Act as extended to the Province of Delhi. Section 16 of the Act lays down that 'a Special Judge may pass any sentence authorised by law.' Section 19 of the Act lays down that the provisions of the Code and of any other law for the time being in force, in so far as they may be applicable and in so far as they are not inconsistent with the provisions of Section 10 to 20 shall apply to all matters connected with, arising from, or consequent upon, "a trial by Special Judge appointed under Section 11." Section 31 of the Code of Criminal Procedure lays down that "a Sessions Judge may pass any sentence authorised by law." A sentence of death passed by a Special Judge thus is not subject to confirmation by the High Court.

  'This provision of the Code thus is inconsistent with the provisions of Section 16 of Bombay Public Security Measures Act as extended to the Province of Delhi, which just lays down that "a Special Judge may pass any sentence authorised by law." A sentence of death passed by a Special Judge thus is not subject to confirmation by the High Court.

  'There is yet another way of looking at the matter. Section 18(3) of the Bombay Public Security Measures Act as extended to the Province of Delhi, which just lays down that "no Court shall ... save as herein otherwise provided, have jurisdiction of any kind in respect of proceedings of any Special Judge." Section 18(2) of the Act gives power to the High Court in respect of the proceedings of any Judge only under Sections 423, 426, 427 & 428 of the Code of Criminal Procedures. Power to confirm a sentence of death under Section 376 of the Code of Criminal Procedure is not there. Had a sentence of death been subject to confirmation such power would certainly have been there. No doubt, the marginal note against Section 18 of the Act speaks of "appeal, revision and confirmation," but the marginal note could not be referred to for purposes of construing the Act.'

  FINAL ORDER

  Nathuram V. Godse

  'He is found 'guilty' under Section 120-B of the Indian Penal Code read with Section 302 of the Code, under Section 19(c) of the Indian Arms Act or in the alternative under Section 114 of the Indian Penal Code read with Section 19(3) of the Indian Arms Act, under Section 19(f) of the Indian Arms Act, under Section 5 of the Explosive Substances Act or in the alternative under Section 5 of th e Explosive Substances Act read with Section 6 of the Act, under Section 4(b) of the Explosive Substances Act read with Section 6 of the Act, under Section 3 of the Explosive Substances Act read with Section 6 of the Act, under Section 115 of the Indian Penal Code read with Section 302 of the Code and under Section of the Indian Penal Code is convicted thereunder and is sentenced (1) to two years' rigorous imprisonment under Section 19(c) of the Indian Arms Act, (2) to two years' rigorous imprisonment under Section 19(f) of the Indian arms Act, (3) to three years' rigorous imprisonment under Section 5 of the Explosive Substances Act read with Section 6 of the Act, (4) to five years' rigorous imprisonment under Section 4(b) of the Explosive Substances Act read with Section 6 of the Act, (5) to seven years' rigorous imprisonment under Section 3 of the Explosive Substances Act read with Section 6 of the Act and (6) to death under Section 302 of the Indian Penal Code—he is to he hanged by the neck till he is dead: the sentences of imprisonment shall run concurrently.

  'He is found 'not guilty' of the remaining offences as specified in the charge, and is acquitted thereunder.'

  Narayan D. Apte

  'He is found "guilty" u/s 120-B of the Indian Penal Code read with Section 302 of the Code, u/s 19(c) of the Indian Arms Act or in the alternative u/s 114 of the Indian Penal Code read with Section 19(f) of the Indian Arms Act, u/s of the Explosive Substances Act or in the alternative u/s 5 of the Explosive Substances Act read with Section 6 of the Act, u/s 4(b) of the Explosive Substances Act read with Section 6 of the Act, u/s 115 of the Indian penal Code read with Section 302 of the Code, u/s 109 of the Indian Penal Code read with Section 302 of the Code, is convicted thereunder and is sentenced (1) to two years' R.I. u/s 19(c) of the Indian Arms Act or in the alternative u/s 114 of the Indian Penal Code read with Section 19(f) of the Indian Arms Act, (2) to two years' R.I. u/s 114 of the Indian Penal Code read with Section 19(f) of the Indian Arms Act, (3) to three years' R.I. u/s 5 of the Explosive Substances Act read with Section 6 of the Act. (4) to five years' R.I. u/s 4(b) of the Explosive Substances Act with Section 6 of the Act, (5) to seven years' R.I. u/s 3 of the Explosive Substances Act read with Section 6 of the Explosive Substances Act and (6) to death u/s 109 of the Indian Penal Code read with Section 302 of the Code—he is to be hanged by the neck till he is dead: the sentences of imprisonment shall run concurrently.

  'He is found 'not guilty' of the remaining offences as specified in the charge, and is acquitted thereunder.'

  Vishnu R. Karkare

  'He is found "guilty" u/s 120-B of the Indian Penal Code read with Section302 of the Code, u/s 114 of the Indian Penal Code read with Section 19(f) of the Indian Arms Act, u/s 5 of the Explosive Substances Act or in the alternative u/s 5 of Explosive Substances Act read with Section 6 of the Act or in the alternative u/s 5 of the Explosive Substances Act read with Section 6 of the Act, u/s 4(b) of the explosive Substances Act read with Section 6 of the Act, u/s 3 of the Explosive Substances Act read with Section 6 of the Act, u/s 115 of the Indian Penal Code read with Section 302 of the Code and u/s 109 of the Indian Penal Code read with Section 302 of the code, is convicted thereunder and is sentenced (1) to two years' R.I. u/s 114 of the Indian Penal Code read with Section 19(f) of the Indian Arms Act, (2) to three years' R.I. u/s 5 of the Explosive Substances Act or in the alternative of the Act, (3) to five years' R.I. u/s 4(b) of the Explosive Substances Act read with Section 6 of the Act, (4) to seven years' R.I. u/s 3 of the Explosive Substances Act read with Section 6 of the Act and (5) to transportation of life u/s 109 of the Indian Penal Code read with Section 302 of the Code; the sentences of imprisonment shall run concurrently and concurrent with the sentence of transportation for life.

  'He is found "not guilty" of the remaining offences as specified in the charge, and is acquitted thereunder.'

  Madanlal K. Pahwa

  'He is found "guilty" u/s 120-B of the Indian Penal Code read with Section 302 of the Code, u/s of the Explosive Substances Act or in the alternative u/s 5 of the Explosive Substances Act read with Section 6 of the Act, u/s 4(b) of the Explosive Substances Act read with Section 6 of the Act, u/s 3 of the Explosive Substances Act and u/s 115 of the Indian Penal Code read with Section 302 of the Code, is convicted thereunder and is sentenced (1) to transportation of life u/s 120-B of the Indian Penal Code read with Section 302 of the Code, (2) to three years' R.I u/s 5 of the Explosive Substances Act read with Section 6 of the Act, (3) to five years' R.I. u/s 3 of the Explosive Substances Act read with Section 6 of the Act, (4) to ten years R.I. under section 3 of the Explosive Substances Act and (5) to se
ven years' R.I. u/s 115 of the Indian Penal Code read with Section 302 of the Code; the sentences of imprisonment shall run concurrently with the sentence of transportation for life.

  He is found "not guilty" of the remaining offences as specified in the charge, and is acquitted thereunder.

  Shankar Kistayya

  'He is found "guilty" u/s 120-B of the Indian Penal Code read with Section 302 of the Code, u/s 5 of the Explosive Substances Act or in the alternative u/s 5 of the Explosive Substances of act with Section 6 of the Act under Section 4(f) of the Explosive Substances Act read with Section 6 of the Act, u/s 3 of the Explosive Substances Act in the alternative u/s 5 of the Explosive Substances Act read with Section 6 of the Act and u/s 115 of the Indian Penal Code read with Section 302 of the Code, is convicted thereunder and is sentenced (1) to transportation for life u/s 120-B of the Indian Penal Code read with Section 302 of the Code, (2) to three years' R.I. u/s 5 of the Explosive Substances Act or in the alternative u/s of the Act (3) to five years' R.I. u/s 4(b) of the Explosive Substances Act read with Section 6 of the Act, (4) to seven years' R.I. u/s 3 of the Explosive Substance Act read with Section 6 of the Act and (5) to seven years' R.I u/s 115 of the Indian Penal Code read with Section 302 of the Code with the recommendation that the sentence of transportation for life u/s 120-B of the Indian Penal Code read with Section 302 of the Code may be commuted to seven years' R.I. u/s 401 and 402 of the Code of Criminal Procedure : the sentences of imprisonment shall run concurrently and concurrent with the sentences of transportation for life.

  'He is found 'not guilty' of the remaining offences as specified in the charge and is acquitted thereunder.'

  Gopal V. Godse

  'He is found "guilty" u/s 120-B of the Indian Penal Code read with Section 302 of the Code, u/s 5 of the Explosive Substances Act or in the alternative u/s 5 of Explosive Substances Act read with Section 6 of the Act, u/s 4(b) of the explosive Substances Act read with Section 6 of the Act, u/s 3 of the Explosive Substances Act read with Section 6 of the Act, u/s 115 of the Indian Penal Code read with Section 302 of the Code and u/s 109 of the Indian Penal Code read with Section 302 of the Code, is convicted thereunder and is sentenced (1) to three years' R.I. u/s 5 of the Explosive Substances Act or in the alternative u/s 5 of the Explosive Substances Act read with Section 6 of the Act, (2) to five years' R.I. u/s 4(b) of the Explosive Substances Act read with Section 6 of the Act, (3) to seven years R.I. u/s 3 of the Explosive Substances Act read with Section 6 of the Act and (4) to transportation for life u/s 109 of the Indian Penal Code read with Section 302 of the Code; the sentences of imprisonment shall run concurrently and concurrent with the sentence of transportation for life.