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PETITIONER: IMAN ALI & ANR.

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT: 28/03/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA RAMASWAMI, V. SHELAT, J.M.

CITATION:  1968 AIR 1464            1968 SCR  (3) 610  CITATOR INFO :  R          1980 SC 898  (149)

ACT: Code  of Criminal Procedure ss. 367, 439-Indian Penal  Code, ss.  302-Accused convicted of murder  during  dacoity--Trial Court  passing sentence of life imprisonment without  giving reasons-High   Court  enhansing  sentence  of  to  that   of death--Considerations  for  interfering with  discretion  of trial  court--Different  considerations do  not  necessarily apply when conviction is under s.396 and not s.302 of I.P.C.

HEADNOTE: The  appellants were convicted by the court of sessions  for an offence punishable under s. 396 of the Indian Penal  Code and  sentenced to imprisonment for life.  They were held  to have  shot dead two inmates of a house in which  along  with others  they  had  gone  to  commit  dacoity.   One  of  the appellants  filed  an appeal in the High Court  against  his conviction.   The High Court thereafter gave notice to  both the   appellants   to  show  cause  why  the   sentence   of imprisonment  passed  against  each of them  should  not  be enhanced  to  death.   After hearing  them  the  High  Court sentenced  them both to death.  The order was challenged  in this  Court and it was urged that the High Court should  not have interfered with the discretion of the Sessions Judge in the matter of passing the appropriate sentence and that  the considerations which apply to I sentence under s. 302 I.P.C. would not apply to a case under s. 396 I.P.C. HELD  :  (i)  The offence committed by  the  appellants  was heinous and committed in cold blood with the sole object  of committing  dacoity.   It  was not a  case  of  constructive liability  but the appellants had themselves  committed  the murders  and  therefore no advantage could be taken  of  the fact  that the conviction was under s. 396 and not under  s. 302.  On the above facts the enhancement of sentence by  the High  Court  from life imprisonment to death  was  justified especially  when the trial court had not given  any  reasons for  awarding  the lesser sentence.  In Dalip  Singh’s  case this  Court  only  cautioned  the  appellate  court  against interfering  if  the  discretion  of  the  trying  judge  is exercised for reasons recorded by him and if it appears from

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the  reasons  that he had exercised a judicial mind  in  not awarding the sentence of death. [612 F-613B]. Dalip  Singh  & Ors. v. State of Punjab [1954]  S.C.R.  145, 156, explained. Lal Singh v. Emperor, A.I.R. 1938 Alld. 625, distinguished.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.232  of 1967. Appeal  by special leave from the judgment and  order  dated August  30,  1967 of the Assam and Nagaland High,  Court  in Criminal Appeal No. 115 of 1964. K. Rajendra Chaudhuri, for the appellants, Naunit Lal, for the respondent, 611  The Judgment of the Court was delivered by Bhargava,  J.  The appellants, Iman Ali and  Jogesh  Chandra Arjya,  were  convicted  by the Court  of  Session  for  an, offence  punishable  under section 396 of the  Indian  Penal Code  and  sentenced to imprisonment for  life.   The  facts found by the Court of Session for convicting the  appellants were  that,  on the night between 11th and 12th  May,  1962, between 1 and 2 a.m., the appellants, along with about 12 or 13  others, committed dacoity in the house of I Tenu  Arjya. At the time of committing the dacoity the dacoits broke open the door of the house with the cross-bar of a plough.   Four dacoits,  including the two appellants, entered  the  house, while  the remaining persons remained standing outside.   As soon,  as  the  door was broken, Golapi, the  wife  of  Tenu Arjya.  was  shot at with a gun by Iman Ali  appellant,  and then  the  other appellant Jogesh Chandra  Arjya  shot  Tenu Arjya.   Both  Golapi and her husband Tenu Arjya  fell  down dead.   Thereafter,  the dacoits demanded  money  from  Hari Charan  Arjya,  the son of the two deceased  persons.   They took away a sum of Rs. 2,500/- which was kept in a quilt and also removed the gold ear-rings, one silver necklace and one waist  band  from the person of Golapi.  The  commission  of this offence in the manner described above was held’ by  the Sessions  Court to be proved on the basis of  the  evidence- given  by the prosecution, and, thereupon, finding both  the appellants  guilty of the offence punishable under  s.  396, I.P.C.,  that  court sentenced each of these  appellants  to imprisonment for life. Iman  Ali  appellant filed an appeal in the  High  Court  of Assam  and Nagaland.  The learned Judges of the High  Court, on  perusing the judgment, were of the prima  facie  opinion that, if the conviction of Iman Ali was to be upheld,  there was no justification for not awarding to him the sentence of death  and, consequently, they issued notice to Iman Ali  to show cause why the sentence should not be enhanced.  At  the same time, a notice was also issued to, the other  appellant Jogesh Chandra Arjya by the learned Judges suo motu to  show cause  why  his  sentence should also  not  be  enhanced  to sentence  of death.  Thereafter, the appeal of Iman Ali  was heard  and both the appellants were heard in respect of  the show  cause  notices  issued to them,  Opportunity  was,  in addition,  offered to Jogesh Chandra Arjya to urge  whatever could  be  said on his behalf against his  conviction  also. The High Court affirmed the findings of fact of the Court of Session and enhanced the sentence of both these  appellants, so that the sentence of rigorous imprisonment for life  ",as altered  to sentence of death, with the direction that  they be  hanged  by  the  neck till  they  are  dead.   Both  the

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appellants  Sought leave, from the High Court to  appeal  to this Court, but leave was refused.  Thereupon, both of  them sought special leave under Article 136 of the  Constitution. By  in  order dated 8th December, 1967, this  Court  -ranted special leave limit- 612 ed to the question whether, in this case, the enhancement of the  -sentence from life imprisonment to sentence  of  death was justified.  Consequently, in this appeal, the only point that  falls  for determination is whether the order  of  the High  Court  enhancing the sentence of the  appellants  from life  imprisonment  to  death was justified  and  should  be upheld. Learned  counsel  for  the appellants,  in  challenging  the justification  for the order of enhancement of  sentence  by the  High Court, relied on the principle laid down  by  this Court  in  Dalip Singh and Others v. State  of  Punjab  (1), which was explained in the following words               "In  a  case  of murder,  the  death  sentence               should ordinarily be imposed unless the trying               Judge  for  reasons which should  normally  be               recorded  considers  it proper  to  award  the               lesser penalty.  But the discretion is his and               if  he gives reasons on which a judicial  mind               could  properly be found, an  appellate  court               should not interfere.  The power to enhance  a               sentence  from transportation to death  should               very  rarely  be exercised and  only  for  the               strongest possible reasons.  It is not  enough               for an appellate court to say, or think,  that               if  left to itself it would have  awarded  the               greater  penalty because the  discretion  does               not  belong to the appellate court but to  the               trial  Judge and the only ground on  which  an               appellate  court  can interfere  is  that  the               discretion  has been improperly exercised,  as               for  example, where no reasons are  given  and               none can be inferred from the circumstances of               the case, or where the facts are so gross that               no normal judicial mind would have awarded the               lesser penalty." It  appears to us, however, that, in the present case,  this principle  is  of  no  assistance  to  the  appellants   for challenging  the step taken by the High Court.   This  Court cautioned  the  appellate court against interfering  if  the discretion  of  the trying Judge is  exercised  for  reasons recorded  by him and if it appears from the reasons that  he had  exercised a judicial mind in not awarding the  sentence of  death.   In the present case, as mentioned by  the  High Court  and as is apparent from the judgment of the Court  of Session,   the   -trial  court  awarded  the   sentence   of imprisonment for life without giving any reasons at all  for adopting  that course.  It is true that the appellants  were not convicted in the present case for the offence of  murder simpliciter  under  section 302, I.P.C.; but  that,  in  our opinion,  is immaterial.  The conviction of  the  appellants under  s’  396,  I.P.C.,  was  not  based  on   constructive liability  as  members of the gang of  dacoits.   There  was clear finding by the (1)  [1954] S.C.R. 145 at p. 156.                             613 Court  of  Session which has been upheld by the  High  Court that  each  of  these appellants  committed  a  cold-blooded murder by shooting two inmates of the house simply with  the object of facilitating commission of dacoity by them.  Those

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persons  were shot and killed even though they had not  even tried  to put up any resistance.  The offence under s.  396, I.P.C., was therefore, no less heinous than an offence under s.  302,  I.P.C. In these circumstances, when the  Court  of Session gave no reason at all for not awarding the  sentence of  death and for sentencing them to imprisonment  for  life only,  it  cannot  be  held that  the  High  Court  was  not justified in interfering with that order. Learned counsel in this connection referred us to a decision of a Division Bench of the Allahabad High Court in Lal Singh v. Emperor(1), where it was held :               "We  do not consider that as a general rule  a               sentence of death should necessarily follow  a               conviction  under  s. 396,  I.P.C.,  and  this               Section  differs from s. 302, I.P.C., in  that               respect.   The  rule is under s. 302,  that  a               sentence of death should follow unless reasons               are  shown for giving a lesser  sentence.   No               such rule applies to s. 396, I.P.C." Again,  we  do  not think that the  learned  Judges  of  the Allahabad  High  Court intended to lay down  that,  even  in cases  where a person is convicted for the offence under  s. 396, I.P.C., and there is clear evidence that he himself had committed a cold-blooded murder in committing the dacoity, a sentence  of  death should not follow.   Clearly,  the  view expressed  was  meant to apply to those  cases  where  there could  be no definite finding as to which  person  committed the  murder  and  all  the members  of  the  gang  are  held constructively  guilty  of the offence punishable  under  s. 396,  I.P.C.  A principle enunciated for  such  a  situation cannot  be applied to a case where there is direct  evidence that  a particular accused committed the murder himself,  as is the finding in the present case.  In these circumstances, the  order  made  by  the High Court  must  be  held  to  be justified and the appeal is dismissed. G.C.                           Appeal dismissed. (1) A.I.R. 1938 Alld. 625. 614