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PETITIONER: BABU AND 3 OTHERS

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 19/01/1965

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. WANCHOO, K.N. SHAH, J.C. MUDHOLKAR, J.R. SIKRI, S.M.

CITATION:  1965 AIR 1467            1965 SCR  (2) 771  CITATOR INFO :  RF         1968 SC 733  (12)  R          1970 SC1266  (10)  R          1970 SC1365  (7)  RF         1981 SC 365  (2)  RF         1982 SC1325  (69)  RF         1992 SC 891  (13)

ACT: Division  Bench-Difference between two judges referred to  a third  Judge,--Third Judge how far free to come to  his  own conclusion-Code  of Criminal Procedure, (Act 5 of 1898),  s. 429. Certificate   of  fitness-High  Court  when   should   grant certificate  in Criminal cases--Constitution of  India  Art. 134(1)(c).

HEADNOTE: The appellants were convicted by the Sessions Judge under s. 302  with s. 34 of the Indian Penal Code.  Two of them  were sentenced to death and two to imprisonment for life.   Their appeal  before the High Court was heard by a Division  Bench of  two judges, one of whom was for allowing it,  the  other for dismissing it.  The third Judge to whom it was refer-red dismissed  the appeal.  The appellants applied for a  certi- ficate  of  fitness  to appeal to the  Supreme  Court.   The certificate was granted mainly on the ground that the  third Judge who heard the appeal had omitted to discuss at  length the  question  of the genuineness of the  first  information report. In  the Supreme Court objection was taken on behalf  of  the State  that the certificate of fitness granted by  the  High Court  was incompetent in view of the previous decisions  of this  Court in Haripada Dey v. State of West Bengal  &  Anr. [1956]  S.C.R.  639,  Nar Singh & Anr.  v.  State  of  Uttar Pradesh, [1955] 1 S.C.R. 238, Sunder Singh v. State of Uttar Pradesh, A.I.R.     (1956) S.C. 411 and Khushalrai v.  State of Bombay, [1958] 1 S.C.R. 552.    The appellants urged that these cases be reconsidered.  A plea for the reduction    of the death sentences was also made.

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HELD:     (i)  Section  429 of the Criminal  Procedure  Code contemplates  that  it is for the third Judge to  decide  on what  points  he  shall hear arguments,  if  any,  and  that postulates  that  he  is completely free  in  resolving  the difference   as  he thinks fit. It was  sufficient  for  the third   Judge  to  have said on the question  of  the  First Information Report that he did not consider it necessary  to decide the point but if it was necessary he was in agreement with the Judge on the Division Bench who was for  dismissing the  appeal.  There was therefore a proper decision  by  the third  Judge and the certificate could not be based  on  the omission  to discuss the doubts about the First  Information Report. [771 F-H] (ii) The Constitution does not contemplate acriminal Jurisdiction for this court except in these case covered  by clauses (a) and (b) of Art. 134 which provide for appeals as of  right. The High Court before it certifies the case  must be  satisfied that it involves some substantial question  of law or principle. Only a case involving something more  than mere  appreciation  of  evidence  is  contemplated  by   the Constitution of the grant of a certificate. What that may be will  depend on the circumstances of the case but  the  High Court should be slow to certify cases. The High Court should not  overlook  that  there is a further  remedy  by  way  of special leave which may be invoked in cases where 772 the certificate is refused.  The present certificate did not comply  with  the  requirements  of  Art.  134(1)  (c)   :is explained above. [780 C-F; 781 A] Case law considered. (iii)That  whenever two Judges in appeal differ on  the question  of sentence, death sentence should not be  imposed without compelling reasons cannot be raised to the  pedestal of  a  rule,  for  that would  leave  the  sentence  to  the determination  of one Judge to the exclusion of  the  other. Each case must be decided on its own facts and a sentence of imprisonment  for life can only be substituted if the  facts justify  that  the  extreme penalty of  law  should  not  be imposed. [781 E-F] Kalawati  and Another v. State of Himachal  Pradesh,  [1953] S.C.R.  546  and Pandurang, Tukia and Bhillia  v.  State  of Hyderabad, [1955] 1 S.C.R. 1083, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 179  of 1964. Appeal from the judgment and order dated August 21, 1963, of the  Allahabad High Court in Criminal Appeals Nos. 2271  and 2272 of 1962. Nur-ud-din Ahmad and J. P. Goyal, for the appellants. O. P. Rana, for the respondent. The Judgment of the Court was delivered by Hidayatullah,  J.-This is an appeal by  certificate  against the  judgment of the High Court of Allahabad dated  May  24, 1963 by which the conviction of and sentences passed on  the four  appellants under S. 302 read with S. 34 of the  Indian Penal  Code were confirmed.  Of the appellants,  Babu  Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life.  The charge  against them  was that they had murdered one Babu Singh  pradhan  at village  Behjoi  on  October  11,  1961.   The  pradhan  was attacked  by the appellants with spears, gandasa and  lathi. The  spears were with Aram Singh and Ram Singh, the  gandasa

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with Babu Singh and the lathi with Gajram Singh.  The motive for  the attack was said to be some former quarrels  between Babu  Singh pradhan and father of Babu Singh, the  appellant and  the  action  of  the  pradhan  after  his  election  in supporting  on  behalf  of the Gaon  Samaj  proceedings  for encroachment  started against the fathers of the  appellants sentenced to death. On  the  day of occurrence Babu Singh pradhan  had  gone  on cycle  to Behjoi to negotiate for the purchase of a  Persian wheel.  He had his cycle repaired by one Amrik Singh who was examined  as a court witness.  He was returning to  his  own village  Alpur  situated to the North-East of  Behjoi  at  a distance of four miles                             773 when  he  was way-laid, felled from the  cycle  and  fatally attacked by the appellants.  The report of the incident  was made  by his brother Sangram Singh at Behjoi Police  Station at  8.30 P.m. Sangram Singh claimed to have accompanied  his brother  to Behjoi and to be in his company at the  time  of the assault.  He was the principal eye-witness in the  case. He  gave  the  time  of the assault  as  6  P.m.  The  First Information  Report  also mentioned the name-, of  Man  Sukh (P.W.  9), Ved Ram (P.W. 4) and Jia Lal (P.W. 1 1)  as  eye- witnesses.   In the Report one Umrao was also named  but  he was not examined as it was alleged that he had been won over by the defence. The  prosecution  examined 16 witnesses in  support  of  the case.   Two  witnesses  were examined by  the  court  and  4 witnesses  were  examined  for the  defence.   The  Sessions Judge, Moradabad accepted the evidence of enmity and also of the  eye-witnesses  and convicting the appellants  under  s. 302/34,  Indian  Penal Code sentenced them as  above.   Aram Singh  who  had struck Babu Singh pradhan on  the  head  and transfixed  it  with  his spear from temple  to  temple  and caused other injuries on vital organs was sentenced to death as  also  Babu Singh who had almost decapitated  Babu  Singh pradhan  with gandasa.  ’Me other two appellants were  given the lesser punishment because they had played a minor  part. All accused appealed to the High Court. The  appeal was heard in the High Court by D. S. Mathur  and Gyanendra  Kumar, JJ. and Mathur, J. was for dismissing  the appeal  while Gyanendra Kumar, J. was for allowing it.   The points of difference were (a) whether the First  Information Report  was  made on October 11, 1961 at 8.30 P.m.  or  much later, (b) whether the offence took place at 6 P.m. or later when  there was no light to identify the assailants and  (c) whether  the eye-witnesses were at all present at the  scene and/or  were  reliable.  Mathur J. concurred  with  all  the conclusions  of  the  Sessions Judge;  Gyanendra  Kumar,  J. differed  because  he  disbelieved that  Sangram  Singh  had accompanied his brother.  His reasons were that he need  not have  accompanied the pradhan and the shop-keeper with  whom the brothers were said to have dealt for the purchase of the Persian wheel was not examined and Amrik Singh who  repaired the cycle of the pradhan did not mention Sangram Singh.   He observed  that  if Sangram was present at the scene  he  too would  have  been  slain  and  the  statement  that  he  was pedalling  14  or  15  paces  behind  the  pradhan  was  not believable  because  cyclists generally  ride  abreast.   He pointed out that as only one cycle was found at the spot and not the other Sangram Singh had not 774 gone  there  on cycle.  He deduced this from the  fact  that Sangram  Singh  admitted to have gone on foot to  Behjoi  to make his report and he rejected his explanation that he  did

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so  because  the cycle had no light observing  that  Sangram Singh  could have borrowed an electric torch or  some  other light.  He disbelieved Ved Ram because he had earlier spoken of  lathi  blows  and no injuries caused  by  a  lathi  were detected at the postmortem examination.  One of the  accused (Ramu  Singh)  had  passed a decree against  Ved  Ram  as  a Sarpanch and this was accepted to be the probable motive for his  false testimony.  Man Sukh was not believed because  he was  a previous "history sheeter".  Jia Lal, who had  stated that   the  occurrence  took  place  at  7  P.m.,  and   was consequently  declared  hostile  by  the  prosecution,   was believed  by  the learned Judge who came to  the  conclusion that  no  light  was  available  at  that  hour  for  proper identification.   The learned Judge was also convinced  that there  was a delay in the dispatch of the copy of the  First Information  Report, special report and the case diary,  and he  was  of the opinion that the First Information  did  not accompany the requisition for postmortem examination sent to the  doctor.   He  was  finally  of  the  view  that  as  no independent eyewitness was examined the benefit of the doubt must be given to the accused. The two judgments were then laid before Takru, J. who agreed with  Mathur,  J. in accepting the prosecution case.   As  a result  of his decision the appeals were dismissed.  On  the application  for  certificate  of fitness  the  two  learned Judges, who had originally heard the appeal, again  differed : Mathur, J. was in favour of refusing the certificate while Gyanendra Kumar, J. was for granting it.  The latter  stated that  the  main  point of difference earlier  was  over  the authenticity  of the First Information Report, its time  and date and Takru, J. had merely stated at the end of his order that  if  it was necessary for him to decide  the  point  he would  have agreed with Mathur, J. and would  have  accepted the  First Information Report as genuine.  Gyanendra  Kumar, J.  felt  considerably  aggrieved, as it  appears  from  his order, that this matter which was fully argued before Takru, J. was not discussed by him in detail.  The papers were laid before Broome, J. who agreed with Gyanendra Kumar, J. on the point  that Takru J. had not gone into the question  of  the authenticity  of  the  First  Information  Report  and   the genuineness of the various documents which were filed by the prosecution  in  support  of  it.  He  was  for  granting  a certificate. When  this  appeal came on for hearing before  a  Divisional Bench  the State raised the contention that the  certificate granted by 775 the  High Court was incompetent in view of the settled  view of  this Court in Haripada Dey v. The State of  West  Bengal and Anr.(1) Nar Singh and Anr. v. The State of Uttar Pradesh (2  ) and Sunder Singh v. State of Uttar Pradesh(,’,).   The appellants then objected that the point involved was one  of interpretation of Art. 134(1) (c) of the Constitution and it could  only have been decided by a Bench of five Judges  and the  decisions above-mentioned being of  Divisional  Benches were  without jurisdiction.  The case was  accordingly  laid before us for disposal.  Before us the same objection to the competency of the appeal was raised and it was contended  on the other side that the decisions of this Court limiting the powers  of the High Court to grant certificate  in  criminal cases  under  Art. 134 (1) (c) were not correct  and  it  is these points which require decision from us. There  seems to be some misapprehension about the manner  in which  the  third Judge is required by law to  proceed  when there is a difference of opinion between two learned  Judges

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in  the  High  Court  in the decision  of  an  appeal.   The provisions of S. 429 Criminal Procedure Code perhaps escaped notice in the High Court.  This section provides :               "429.   Procedure  where Judges  of  Court  of               Appeal are equally divided.               When the Judges composing the Court of  Appeal               are equally divided in opinion, the case, with               their  opinions thereon, shall be laid  before               another  Judge  of the same  Court,  and  such               Judge,  after  such  hearing (if  any)  as  he               thinks fit, shall deliver his opinion, and the               judgment or order shall follow such opinion." The  section  contemplates  that it is for  third  Judge  to decide  on what points he shall hear arguments, if any,  and that postulates that he is completely free in resolving  the difference  as  he  thinks fit.  In  our  judgment,  it  was sufficient  for Takru J to have said on the question of  the First  Information  Report  that he  did  not  consider’  it necessary to decide the point but if it was necessary he was in  agreement with all that Mathur J had said.   There  was, therefore, a proper decision by Takru J and the  certificate could  not be based upon the omission to discuss  the  First Information Report and the doubts about it. It was contended by the State that the certificate attempted to reopen questions of fact which must be held to be decided finally (1) [1956] S.C.R. 639. (2) [1955] 1 S.C.R. 238. (3) A.I.R. [1956] S.C. 411. p.165-3 776 by the High Court in concurrence with the Sessions Judge and such a certificate was incompetent in view of the  decisions of this Court earlier mentioned.  Reference was also made to Khushalrao  v. State of Bombay(1).  The appellants in  reply contended that the interpretation put upon Art. 134 (1)  (c) in  the  earlier  cases of this Court  was  too  narrow  and required to be reconsidered. Article  134  provides for appeals to the Supreme  Court  in criminal  matters.  Clause (1) of this Article, which  alone is material reads               "134.  Appellate jurisdiction of Supreme Court               in regard to criminal matters.               (1)An appeal shall lie to the Supreme Court               from any judgment, final order or sentence  in               a  criminal proceeding of a High Court in  the               territory of India if the High Court-               (a)has  on  appeal  reversed  an  order  of               acquittal  of an accused person and  sentenced               him to death; or               (b)has  withdrawn for trial  before  itself               any  case  from any court subordinate  to  its               authority and has in such trial convicted  the               accused person and sentenced him to death; or               (c)certifies that the case is a fit one for               appeal to the Supreme Court:               Provided  that an appeal under sub-clause  (c)               shall lie subject to such provisions as may be               made  in  that  behalf  under  clause  (1)  of               article 145 and to such conditions as the High               Court may establish or require.                                    (2) The  first two sub-clauses deal with special situations  and provide  for  an  appeal as of right and they  need  not  be considered.  The third sub-clause permits an appeal in cases

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which the High Court certifies as fit for appeal.  The  sub- clause  does  not state the conditions  necessary  for  such certification.  No rules under Art. 145 regulating generally the  practice and procedure of this Court for the  grant  of certificate  by the High Court have been framed.  The  power which  is granted is no doubt discretionary but in  view  of the  word  "certifies" it is clear that such power  must  be exercised with great circumspection and only in a case which is really fit for appeal.  It is impossible by a formula  to indicate the precise limits (1)  [1958] S.C.R. 552. 777 of such discretion, but the question has arisen on a  number of occasions in this Court and some of the leading views may be considered. In Haripada Dey v. The State of West Bengal and Anr.(1), the appellant was convicted under s. 411, Indian Penal Code  and sentenced   to   two  years’   rigorous   imprisonment   for dishonestly receiving and retaining a motor car which he had reason  to believe was stolen.  His appeal was dismissed  by J.P.  Mitter  and  Sisir Kumar Sen, JJ.  He  applied  for  a certificate  and according to the practice of  the  Calcutta High Court the petition was placed not before the Judges who heard the appeal but before another Bench consisting of  the Chief  Justice  and Lahiri J. The Chief  Justice  passed  an elaborate order in the course of which he observed               "In my view a certificate of fitness ought  to               issue  in  this case,  although  the  question               involved is one of fact.               In  my  view it is impossible not to  feel  in               this case that there has not been as full  and               fair  a trial as ought to have been held.   In               the  circumstances, it appears to me that  the               petitioner  is  entitled  to  have  his   case               further  considered  and  since  such  further               consideration can only be given by the Supreme               Court,  I would grant the  certificate               prayed for." As the chief Justice himself said the question  involved-was one  of fact, this Court did not approve of the  certificate and held that it was no certificate at all.  It was  pointed out that a certificate granted in Criminal Appeal No. 146 of 1956 (Om Prakash v. State of U.P.) was not accepted when  no reasons  were  given and that the  certificate  in  Haripada Dey’s(1)  case  was also bad because the  reasons  were  not sound.   Bhagwati J, speaking on behalf of Imam and  Govinda Menon JJ and himself, said:               "Whatever may have been the misgivings of  the               learned Chief Justice in the matter of a  full               and fair trial not having been held we are  of               the  opinion  that he had no  jurisdiction  to               grant a certificate under article 134(1)(c) in               a  case  where admittedly in his  opinion  the               question  involved  was one of  fact-where  in               spite of a full and fair trial not having been               vouchsafed to the appellant, the question  was               merely one of a further               (1)   [1956] S.C.R. 639.                778               consideration of the case of the appellant  on               facts.  The mere disability of the High  Court               to  remedy this circumstance and  vouchsafe  a               full   and  fair  trial  could  not   be   any               justification for granting a certificate under               article 134 (1) (c) and converting this  Court

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             into  a  Court of Appeal on  facts.   No  High               Court  has  the jurisdiction to pass  on  mere               questions of fact for further consideration by               this Court under the relevant articles of  the               Constitution."               The  observations,  if  we  may  say  so  with               respect,  are too absolute to be a safe  guide               in  the  infinite variety of cases  that  come               before the courts.  There are cases and cases.               It  can  only safely be said that  under  Art.               134(1)(c)  this  Court has not  been  made  an               ordinary Court of Criminal Appeal and the High               Courts   should  not  by  their   certificates               attempt to create a jurisdiction which was not               intended.  The High Courts should,  therefore,               exercise  their discretion sparingly and  with               care.   The certificate should not be  granted               to  afford  another hearing  on  facts  unless               there is some error of a fundamental character               such as occurred in Nar Singh’s(1) case.               In  Nar Singh’s case(1) 24 persons were  tried               under  ss. 302/ 149, 307/149 and 148.   Indian               Penal  Code  and eight were convicted  by  the               Court of Session.  On appeal to the High Court               five  more  were acquitted and that  left  Nar               Singh,  Roshan  Singh  and  one  Nanhu  Singh.               Their  convictions  were upheld  by  the  High               Court  and  their sentences  were  maintained.               What  had happened in the case of Nanhu  Singh               may  now be stated from the judgment  of  this               Court :               "By a curious misreading of the evidence  this               Nanhu  Singh was mixed up with  Bechan  Singh.               What the High Court really meant to do was  to               convict  Bechan Singh and acquit Nanhu  Singh.               Instead  of that they acquitted  Bechan  Singh               and  convicted  Nanhu Singh.  As soon  as  the               learned  High  Court  Judges  realised   their               mistake  they  communicated  with  the   State               Government  and an order was thereupon  passed               by  that  Government  remitting  the  sentence               mistakenly passed on Nanhu and directing  that               he be released." All  the  accused applied for a certificate and in  view  of what had happened and as the conviction of Nanhu Singh on  a murder (1)  [1965] S.C.R. 238. 779 charge was still subsisting a common certificate was granted to all of them.  The High Court thought that the word "case" in  Art. 134(1) (c) meant the case as a whole.  Nanhu  Singh did  not  appeal and the appeal was filed by Nar  Singh  and Roshan Singh on the common certificate.  This Court  pointed out that the High Court was wrong in thinking that the  word "case"  in  the sub-clause meant a case as a whole  and  the certificate  in relation to accused other than  Nanhu  Singh was  bad.   The certificate to Nanhu Singh was  said  to  be proper.  The Divisional Bench then considered the case under Art. 136(1) for special leave but found it unfit. In  Sunder Singh v. The State of U.P. (1) it was  laid  down that  unless a substantial question of law or principle  was involved  the case must not be certified as fit even  though the  question  of fact may be difficult.   Khushal  Rao’s(2) case   again  furnishes  an  example  of  an   extraordinary situation.  The High Court had based a conviction for murder

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on  dying  declarations which it considered to be  true  but which required to be corroborated before they could be acted upon  in view of the observations of this Court  in  Ramnath Madho  Prasad  v.  State of Madhya Pradesh(B)-"  it  is  the settled law that it is not safe to convict an accused person merely  on  the evidence furnished by  a  dying  declaration without    further   corroboration".    The   Court    found corroboration in the fact that Khushalrao was absconding for a long time and was arrested from a room which had only  one exit  and that was locked on the outside.  When the  accused applied  for certificate it was pointed out that  there  was some  evidence  which was not brought to the notice  of  the High Court establishing that the accused was evading  arrest in another case and the circumstance that he was hiding then became dubious.  The High Court felt constrained to give the certificate  because  under  the ruling of  this  Court  the conviction was assailable.  This Court pointed out that  the certificate  was bad because it was not granted by the  High Court  on any "difficult question of law or procedure  which it  thought  required to be settled by this Court but  on  a question  which is essentially one of fact, namely,  whether there was sufficient evidence of the guilt of the  accused". The  certificate was perhaps of the type represented by  the certificate  to  Nanhu  Singh which was  held  proper.   The matter was then considered in an elaborate judgment from the point of view (1) A. 1. R. [1956] S.C. 411. (2) [1958] S.C. R. 552. (3)A. I. R. [1953] S.C. 420. 7 80 of  Art.  136(1)  and  the  view  about  dying   declaration contained  in the earlier case was modified.   The  evidence was  examined afresh and the judgment of the High Court  was affirmed. These  cases  illustrate different angles  of  the  problem. There  is  no doubt whatever that sub-clause  (c)  does  not confer  an unlimited jurisdiction on the High  Courts.   The power  gives  a  discretion but discretion  must  always  be exercised on some judicial principles.  A similar clause  in Art.  133,  which allows appeals in civil  cases,  has  been consistently interpreted as including only those cases which involve a question of general public importance.  That  test need not necessarily be applied to a criminal case but it is clear that mere questions of fact should not be referred for decision.  The Constitution does not contemplate a  criminal jurisdiction  for  this  Court except  in  those  two  cases covered by cls. (a) and (b) which provide for appeals as  of right.  The High Court before it certifies the case must  be satisfied that it involves some substantial question of  law or  principle.   In  a criminal appeal the  High  Court  can consider  the  case on law and fact and if  the  High  Court entertains  doubt  about  the guilt of the  accused  or  the sufficiency  of the evidence it can always give the  benefit to the accused there and then.  It is not necessary that the High  Court  should first convict him and then grant  him  a certificate  so that this Court, if it thought fit,  reverse the decision.  It is thus obvious that only a case involving something  more  than  mere  appreciation  of  evidence   is contemplated  by  the  Constitution  for  the  grant  of   a certificate.    What  that  may  be  will  depend   on   the circumstances of the case but the High Court should be  slow to  certify cases.  The High Court should not overlook  that there is a further remedy by way of special leave which  may be invoked in cases where the certificate is refused. In  this  case the two learned Judges who  first  heard  the

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appeal  differed on appreciation of evidence.  The  Criminal Procedure  Code  contemplates  the  resolution  of  such   a difference by the opinion of a third Judge.  We have already drawn  attention  to  the provisions  of  s.  429,  Criminal Procedure  Code relating to the hearing by the third  Judge. It  would appear to us that after the decision of the  third Judge  accepting  the  evidence against  the  appellants  no question of fact survived.  The learned Judge who heard  the appeal  on difference was also within his right  in  stating that  the  doubts which Gyanendra Kumar J.  felt  about  the genuineness  of  the First Information Report etc.  did  not affect him and that he was in agreement with what Mathur  J. had said on that part 781 of the case.  In our opinion, the certificate did not comply with the requirements of Art. 134 (1) (c) as explained by us here.   We have considered this case from the point of  view of  Art. 136(1) but we do not find it fit for the  grant  of special  leave.   The  evidence  in  the  case  was  rightly appraised by Mathur J. and the doubts which Gyanendra  Kumar J.  entertained were not justified.  We do  not,  therefore, grant special leave. It  was contended that as long time has passed the  sentence of death should be substituted by imprisonment for life  and reliance  was placed upon Kalawati and Another v. The  State of Himachal Pradesh(1) where such action was taken.  In  our judgment,  each case must be decided on its own facts and  a sentence of imprisonment for life can only be substituted if the facts Justify that the extreme penalty of the law should not be imposed.  We do not consider this to be such a case.. It  was next contended on the authority of Pandurang,  Tukia and  Bhillia  v.  The State Hyderabad (2) that  as  the  two learned Judges have differed, the extreme penalty of the law should  not  be imposed.  In the cited case the  Judges  had differed  on the question of sentence itself and  the  third Judge before whom the matter was placed was in favour of the death  penalty.   Bose  J,  in  reducing  the  sentence   to imprisonment  for  life,  observed  :  "But  when  appellate Judges, who agree on the question of guilt differ on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons".  This cannot be raised to the pedestal of a rule for that would leave the sentence to  the determination  of one Judge to the exclusion of  the  other. In  the present case both the Judges appear to have been  in favour  of  the death sentence  because  although  Gyanendra Kumar J. was in favour of acquittal he did not object to the confirmation  of the death sentence when Takru J. had  given his  opinion.  The offence here was brutal and normally  the death  penalty  should follow.  We,  therefore,  decline  to reduce  the  sentence  passed.   The  appeal  fails  and  is dismissed. Appeal dismissed. (1)  [1953] S.C.R. 546. (2)  [1955] 1 S.C.R. 1083. 782