[1946] EACA 67

## **APPELLATE CRIMINAL**

Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

## REX, Respondent

## SURAT SINGH GUDAR SINGH AND MOHINDER SINGH S/O BOOTA SINGH, Appellants (Original Accused Nos. 2 and 1)

## Criminal Appeals Nos. 198 and 204 of 1945 Consolidated

Criminal law-Assault occasioning actual bodily harm, S. 245 Penal Code-Three counts-Pleas of guilty-Consecutive sentences of one year I. H. L. imposed on each count—Severity of sentence.

The facts of this case, which is reported solely on the question of severity of sentence are fully set out in the judgment of the Court.

Held (29-3-46).—That in the circumstances of the case the sentences were excessive and ought to be reduced.

Sentences ordered to run concurrently. Mangat and Khanna for Appellant No. 1.

Madan for Appellant No. 2.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The accused Mohinder Singh and Surat Singh, both of the artisan class, were charged before the Resident Magistrate (Mr. Roberts), Nairobi, on three counts the particulars of which are respectively: "First Count: Assault causing actual bodily harm; contra section 245 P. C. In that you (1) Mohinder Singh, (2) Surat Singh Gudar Singh, at about 10 a.m. on the 27th June, 1945, in a house in Fourth Avenue, Parklands, in the Central Province, did tie up Matius Olang s/o Pedo with ropes, beat him with hockey sticks, burn him with a piece of hot iron on his buttocks thereby occasioning actual bodily harm. Second Count: Assault causing actual bodily harm contrary to Section 245 of P. C. In that you (1) Mohinder Singh, (2) Surat Singh Gudar Singh, at about 11.30 a.m. on the 27th June, 1945, in a house in Fourth Avenue, Parklands, in the Central Province, did tie up Angenda s/o Aboli with ropes and beat him with hockey sticks, burn him on the buttocks with a piece of hot iron and insert a piece of wood into his anus, thereby occasioning actual bodily harm. Third Count: Assault causing actual bodily harm contrary to Section 245 of P. C. In that you (1) Mohinder Singh, (2) Surat Singh Gudar Singh, did at about 3.10 p.m. on the 27th June, 1945, at the house of Mawa Singh Nihal Singh tie up Naftali Ondewa s/o Opiyo with ropes, beat him with hockey sticks, burn him on the left buttock with a piece of hot iron and insert a piece of wood into his anus, thereby occasioning actual bodily 'harm:"

The first accused, Mohinder Singh, pleaded: "It is true. I did assault all these three men", and the second accused, Surat Singh pleaded: "I was with accused 1. I did not take much part but I helped in all three cases." Both accused were represented by Counsel, neither of whom contested either plea, being an unequivocal plea of guilty to the offence charged for obvious reasons. Section 245 of the Penal Code provides: "Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment." The accused were convicted on their pleas and sentence on the first count to one year's hard labour, on the second count to one year's hard labour, and on the third count to one year's hard labour and Sh. 1,000 fine, with an additional six months' hard labour in default; the sentences are consecutive, so that each accused's term of imprisonment will be at least three years and probably three and a half years.

Counsel for the accused, Mr. Madan and Mr. Mangat, have pleaded eloquently that the sentences are excessive in the circumstances of the case. We have thought it proper to consider the sentences in the light of a case of a more or less similar character which was tried by Maxwell, J., sitting with a jury in Nairobi, as long ago as 1920, Rex v. Hawkins, Cr. Case 47/1920, and which went on appeal to the Court of Appeal for Eastern Africa, Cr. A. 6/1920. That caserelated to offences *contra* the Indian Penal Code which was then in force in Kenya. The charges on which the accused was tried were as follows:

"1. Voluntarily causing grievous hurt (to extort confession) on Mucheruon or about 8th May, 1920 (Sec. 331). 2. Voluntarily causing grievous hurt (to extort confession) on one Ricku wa Kairu on or about 5th, 6th and 7th May, 1920 (Sec. 331). 3. Voluntarily causing hurt (to extort confession) on one Makami wa Karia on or about 7th May, 1920 (Sec. 330)."

The accused pleaded not guilty to all three charges. The offence of voluntarily causing grievous hurt to extort confession or to compel restoration of property (Sec. 331) is punishable with imprisonment of either description which may extend to ten years and fine and the offence of voluntarily causing hurt to extort confession or to compel restoration of property (Sec. 330) is punishablewith imprisonment of either description which may extend to seven years and fine. On the first charge the Jury found the accused "guilty of hurt to extort" confession", on the second charge "guilty of grievous hurt to extort confession", on the third charge "guilty of hurt to extort confession". The learned trial Judge in concurring with the verdict of the Jury said: "I consider it my duty to inflict a severe sentence and an exemplary punishment", and passed a sentence of two years' rigorous imprisonment on the first charge, a sentence of two years' rigorous imprisonment on the second charge and on the third charge a fine of Rs. 2,000with nine months' rigorous imprisonment in default. In the Court of Appeal. (Guthrie Smith, J., Sheridan, J., Belcher, Asst. J.) it was submitted, inter alia, that the sentence was "unconscionable and oppressive". The appeal from conviction and sentence was dismissed. With regard to the sentence the judgment of the Court was: "The record discloses a long continued series of acts characterized by utterly heartless callous brutality" and concluded by stating that the savagebrutality exhibited by the accused justified the imposition of a heavy sentence. While the present case reveals some similarities to the Hawkins case, for instance, in the beating and torture and the purpose of the assault, namely, to disclose the whereabouts of missing property, the latter case in many respects was of a much more serious nature and yet the sentence imposed in that case which was. considered by the trial Judge to be severe and exemplary and by the Court. of Appeal to be heavy was a lighter sentence than the sentence passed in the present case.

Some of the distinguishing features in the present case are: (1) The accused pleaded guilty; (2) the victims who had been in the custody of the police were handed over by them to the accused, and after the assault returned to police. custody; (3) the period during which the accused detained them was short; (4) the punishment inflicted, though very painful amounted only to harm, did not in any sense endanger their lives and was such that after about six days they were discharged from hospital "well on the way to recovery"; (5) the accused in the. present case are uneducated men of the artisan class as distinct from Hawkins, who was an educated man trained to discipline; (6) the amount of money missing; in the present case was Sh. 3,000 whereas in the Hawkins case it was Rs. 450. and the difference becomes greater when one considers the different station in. life of the respective accused. Having given more than sufficient reasons for our decision that the sentences in the present case are excessive when compared with. those in the Hawkins case we need not refer to any other features of either case. We reduce the sentences by directing that they shall run concurrently.