Judgement

HIDAYATULLAH, J. : This judgment will also govern the disposal of Criminal Appeal No. 102 of 1965 (Rajwant Singh v. The State of Kerala). The appellants in these two appeals have been convicted under Ss. 302/34. 364, 392, 394 and 447 of the India Penal Code. Unni (appellant in this appeal) has been sentenced to death and Rajwant Singh (appellant in the other appeal) has been sentenced to imprisonment for life. No separate sentences under the other sections have been imposed on Unni but Rajwant Singh has been sentenced to four years rigorous imprisonment under Ss. 392 and 394, India Penal Code with a direction that the sentence shall run concurrently with the sentence of imprisonment for life. The High Court of Kerala has dismissed their appeals and confirmed the sentence of death of Unni. They now appeal by special leave of this Court.

2. These appellants were tried with three others, of whom two were acquitted. One Taylor was also convicted of the same offences and was sentenced in the aggregate to imprisonment for life. He has not appealed to this Court. We are not concerned with them. The case relates to the death of one Lt. Commander Mendanha of the Naval Base, I. N. S. Venduruthy, Willingdon Island, Cochin Harbour, on the night of March 30, 1963. Unni was attached as a rating to this Naval base and at the time of the offence was on leave. Taylor, who has not appealed was an ex-sailor and Rajwant Singh was attached to I. N. S. Vikrant. The case of the prosecution was that these persons conspired together to burgle the safe of the Base Supply Office on the eve of the pay-day, when a large sum of money was usually kept there for distribution on the pay-day. They collected various articles such as a Naval Officer s dress, a bottle of chloroform, a hacksaw with spare blades, adhesive plaster, cotton wool and ropes. On the night in question they decoyed the Lt. Commander from his house on the pretext that he was wanted at the Naval Base, and in a lonely place caught hold of him. They covered his mouth with the adhesive plaster and tied a handkerchief over the plaster and plugged his nostrils with cotton wool soaked in chloroform. They tied his hands and legs with rope and deposited him in a shallow drain with his own shirt put under his head as a pillow. They then went up to the sentry, who was induced to part with his rifle to one of the accused who had dressed himself as an officer, and attacked him. The sentry would have received the same treatment as his Lt. Commander but he raised a hue and cry and attracted the attention of the watchman. Fearing detection the assailants released the sentry and took to their heels. The sentry after escaping informed the Officer-on-duty at the Base and stated that he had recognized Rajwant Singh as one of his assailants. Next morning the dead body of the Lt. Commander was discovered in the drain where he had been left by the assailants.

3. Investigation followed and five persons were placed on trial before the Sessions Judge, Ernakulam Division, who convicted three and sentenced them as stated above and acquitted the other two. The appeals of these persons before the High Court failed. In these appeal the complicity of the appellants in the offence is not challenged but it is argued that the evidence for the prosecution does not establish the offence of murder but of causing grievous hurt or of culpable homicide not amounting to murder. It is also contended that S. 34 of the Indian Penal Code could not be used against any of the accused. Unni has also contended that the sentence of death was not proper as the case against him was indistinguishable from that of the other two. We shall deal with these arguments.

4. Our attention has been drawn to the inquest and post-mortem reports to establish what was actually done to the Lt. Commander. From these, it is established that the legs of the victim were tied with rope and his arms were tied behind his back. A large adhesive plaster was st