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A precedent ignored

Published : Sep 07, 2012 00:00 IST

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In 1937, when hanging was the standard punishment for murder, while adjudicating Athappa Goundans criminal appeal, the Madras High Court was confronted with conflicting interpretations of Section 27 of the Evidence Act one that would exclude the confessional aspect of the statement and the other that would include it. One interpretation helped the accused, the other helped the prosecution. If the confessional part of the statement was included, the accused would be convicted and hanged. The Bench referred the question of law to a Full Bench of the court. The Full Bench ruled that Section 27 would include the confessional part of the statement. This view became influential not just in Madras Presidency (where it became the law) but also in the rest of British India. On the basis of this judgment, Goundan and many other prisoners were hanged across British India.

In 1945, this issue about the correct interpretation of Section 27 of the Evidence Act was agitated again before another Bench of the Madras High Court in the case of Pulukuri Kotayya and seven others who had been sentenced to death by the trial court. Bound by the judgment of the Full Bench in Goundan, the court dismissed the appeals. The prisoners appealed to the Privy Council, which overruled Goundan and set them free, holding that the correct interpretation of Section 27 excluded the confessional part of the statement.

The story did not end there. Because of the ruling in Goundan, a large number of prisoners had been executed and many more were facing the gallows. Madras Presidency instituted a commission to examine all convictions based on the Goundan judgment, reprieved the sentences, and unconditionally released the prisoners.

Over the last two years, numerous letters have been written to the Union and State governments, the President and the Governors of States informing them that the Ravji group of death-row prisoners under their jurisdiction had had their Supreme Court judgments declared per incuriam, but to no avail. Did the British government care more for Indians who had been wrongly sentenced to death than the Indian government did 72 years later when Bariyar overruled Ravji? Or did it just care more for the rule of law?

Yug Mohit Chaudhry

(This story was published in the print edition of Frontline magazine dated Sep 07, 2012.)

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