On 7th June, 2013 Martin Moran (Age 42) a celebrated mountaineer from Norway came to India with the thirst of exploring as many Himalayan peaks as possible during a period of three months in India. He was accompanied by John A Jackson (Age 39) a British national and long time partner of Moran in Mountaineering. Jackson was related to their professional life as a photographer. Another person named Sean O’Connor (Age 35) from New Zealand joined both of them in their tour.
Their journey started on 12th June from Hrishikesh, Uttarakhand and their first target was to Nanda Devi peak to be covered within a week and a half. By the 15th they reached Lata village, near Joshimath. They hired a mountaineering attendant (Sherpa) named Roshan Giri from the United Sherpa Association, an organization of professional sherpas near Joshimath.
Without facing any inconvenience, all four of them reached the peak on 22nd June. On their way back to their base camp at Hiloti, they decided to continue with their exploration without any halt en route and inquired of Roshan Giri about the mountaineering route to Kanchenjhunga, the third highest mountain peak in the world rises to an elevation of 8,586 m (28,169 ft). Giri advised them about the route along with caution so that they face no predicament; it would take more than three weeks to reach Kanchenjhunga from the place where they were at that time. They had to cross the India-Nepal border through Banbasi village which would take a week at least from Hiloti and only after that their actual journey will start. Therefore, it was not an intelligent decision to continue with the journey.
However, the three mountaineers unanimously decided that, they should not halt in their journey and accordingly on the 23th they started a new expedition towards the Banbasi village situated approximately 400 Km. from Hiloti.
On 1st July they entered Nepal and reached Taplejung, a small town in Nepal and a place from where majority of the mountaineers and trekkers start their journey towards Kanchenjhunga. On the 9th of July they reached Tamor Khola, through dense jungle and picturesque villages, before reaching some magnificent rhododendron forests on the way to Kanchenjunga Base Camp at Pangpema. There for the first time they encountered rough the weather. They had to take a halt in Tamor Khola for two days because of the torrential raining which continued for two days. On the third day i.e. 12th July, they resumed their journey and by the 20th of July they reached Pangpema which was the last base on that route.
They finally reached Kanchenjhunga on 26th of July, and on their way back to their base camp at Pangpema they were confronted by huge landslides and a cloudburst. On the next day i.e. 27th of July they took shelter in a deserted cave and waited for the calamities to get over. Most unfortunately for them, while they were in a position remote from the entrance to the cave, a fresh landslide occurred. Heavy boulders fell in such a manner as to block completely the only opening to the cave. When the men discovered their predicament they settled themselves near the obstructed entrance to wait until a rescue party should rescue them.
Within the first three days of their confinement, all their reserved food were exhausted and thus they were forced to starve while waiting. On the other hand, the devastating floods and landslides becoming the worst natural disaster since the 2004 tsunami. Though some parts of Himachal Pradesh, Haryana, Delhi and Uttar Pradesh in India experienced the flood, the major part of the calamities fell upon Uttarakhand and Nepal. On the 18th day of their confinement a rescue troop from the Royal Nepal Air force discovered the cave with the help of some other mountaineers who came across those unfortunate people on that area. On 15th August the rescue parties started to remove the obstruction but on several occasions they were frustrated by fresh landslides. Finally on the 24th day of their confinement, success was finally achieved when the men entered the cave.
Since it was known that the explorers had carried with them only scant provisions, and that there was no animal or vegetable matter within the cave on which they might subsist, anxiety was early felt that they might meet death by starvation. When the imprisoned men were finally released, half eaten corpse of Giri was discovered by the rescue party at the entrance of the cave.
From the testimony of the defendants, it appeared that it was Giri himself who first proposed that they might find some nutriment (without which survival was impossible) in the flesh of one of their own number. He also told the rest of the members that, according to their own custom which they were using from time immemorial period, this is the natural way to be adopted in such a situation. It was also him who first proposed the use of some method of casting lots, calling the attention of the defendants to a pair of dice he happened to have with him. The defendants were at first reluctant to adopt so desperate a procedure, but Giri convinced them finally. However, in the draw of lots, the decision went against Giri and he was then decided to be sacrificed by the rest of them and he was then killed by the three men by using of heavy stones in the cave. Later, all of them partook of the flesh from his body for survival.
All the three persons were arrested by the Nepal Police on a charge of man- slaughter. An FIR was lodged against the three of them in the Joshimath Police Station. On 10th of October Moran, Jackson and O Conner were extradited to India from Nepal in accordance with Article I and Article III of the “India-Nepal Extradition Treaty, 1953”.
All of them were charged with the offence of murder u/s 302 read with Section 34 of The Indian Penal Code, 1860. District Court of Joshimath found them guilty of murder and sentenced all three of them to death u/s 302 of IPC, 1860 on 30th July, 2014.
They filed an appeal before the High court of Uttarakhand on 9th October 2014 contending as follows:
1. The district court had wrongfully tried the case and it was absolutely ultra vires for them to charge them in accordance with the Indian Penal Code, 1860 as the accused were neither the citizens of India nor they had committed any crime within the territory of India.
2. The doctrine of necessity applied to the case and no offence had been committed.
3. In the alternative, the charge against them should have been Culpable homicide not amounting to murder in the light of the Exception 5 of Section 300 which states that, Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
