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PETITIONER: MUNIAPPAN

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT18/03/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J)

CITATION:  1981 AIR 1220            1981 SCR  (3) 270  1981 SCC  (3)  11  CITATOR INFO :  F          1987 SC1422  (11,14)  R          1990 SC 415  (17,22,24)  F          1991 SC 345  (7)

ACT: CRIMINAL PROCEDURE CODE 1973      (1)  S.   235(2)-Hearing  accused   on  sentence-Formal question to  accused as  to what  he  has  to  say-Statutory obligation  whether   discharged-Necessity  and   object  of section explained.      (2) S.  354(3)-’Special  reasons’  for  awarding  death sentence-Sessions  Judge   characterising  murder  ’terrific double murder’ and awarding death sentence-Whether legal and valid. PRACTICE AND PROCEDURE      (1) Advocates  appearing in  case-Conduct of-High Court to make only guarded observations.      (2) Police Officers-Conduct of-Criticism by High Court- Prior opportunity to explain-Necessity of.

HEADNOTE:      The Code  of Criminal Procedure, 1973 by section 354(3) provides  that   when  the  conviction  is  for  an  offence punishable with  death, the  judgment shall  in the  case of sentence of death state ’special reasons’ for such sentence.      The appellant  was charged  under section  302  of  the Penal Code  for having  committed the murder of his maternal uncle and his son.      The Sessions  Judge convicted  the appellant for murder and being  of the  opinion that  it was  "a terrific  double murder" sentenced the appellant to death,      The High  Court condemned the murders as "cold blooded" and confirmed the conviction and sentence.      Allowing the  appeal to  this  Court,  limited  to  the question of sentence. ^      HELD: 1. The sentence of death imposed on the appellant is set  aside and  he is sentenced to imprisonment for life. [275 F]      2. The reasons given by the Sessions Judge for imposing the death  sentence are  not ’special  reasons’  within  the meaning of section 354(3) of the Criminal Procedure Code. It

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is  not   certain  if   he  were   cognizant  of   his  high responsibility under  that provision,  that  he  would  have imposed the death sentence. [275 E]      3. It  is not  understood what  is meant by "a terrific murder" as  suggested by the Sessions Judge. All murders are terrific and if the fact of the murder being 271 terrific is  an  adequate  reason  for  imposing  the  death sentence then  every murder  shall have  to be  visited with that sentence. Death sentence will then become the rule, not an exception  and section 354(3) would become a dead letter. [272 F-G]      4(i). On  the question of sentence it is not merely the accused but the whole society which has a stake. [273 B]      (ii) After  the conviction is recorded, the occasion to apply the  provisions of  section  235(2)  of  the  Criminal Procedure Code  arises. The obligation under this section to hear  the  accused  on  the  question  of  sentence  is  not discharged by putting a formal question to the accused as to what he  has to  say on  the question of sentence. The Judge must make  a genuine  effort to  elicit from the accused all information which  will eventually  bear on  the question of sentence. All  admissible evidence  is before  the Judge but that evidence  itself often  furnishes a clue to the genesis of the  crime and  the motivation of the criminal. It is the bounden duty  of the  Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological  point of view. Questions which the Judge can put  to the accused under section 235(2) and the answers which the accused makes are beyond the narrow constraints of the Evidence  Act. The  Court,  while  on  the  question  of sentence, is  in an  altogether different  domain  in  which facts and factors of an entirely different order operate.                                  [273 B; 272 H-273 A; 273 C]      In the  instant case,  the Sessions Judge complied with the form  and letter  of the obligation which section 235(2) imposes,  forgetting   the  spirit  and  substance  of  that obligation. [273 D]      5. It  is not  possible to  appreciate how, after being shot in  the chest  and receiving  the injuries described in the post-mortem report, the deceased could have survived for a couple  of hours  thereafter. There is also no explanation as to  why the F.I.R. was not recorded at the Police Station when P.W.  1 went  there. It  is therefore unsafe to confirm the sentence of death imposed upon the appellant.                                        [273 H. 274 F, 275 E]      6. It  is not  the normal function of the High Court to pass judgment  on the  conduct of  lawyers who appear before the lower courts. [275 C]      7. The  High Court  should have given an opportunity to the two  police officers  to explain  their  conduct  before making criticism on it. [274 G]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 221 of 1981.      Appeal by  Special Leave  from the  Judgment and  Order dated 23.10.1979 of the Madras High Court in Criminal Appeal No. 759/79 (Referred Trial No. 9/79).      A.T.M. Sampath and P.N. Ramalingam for the Appellant.      A.V. Rangam for the Respondent. 272      The Judgment of the Court was delivered by,

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    CHANDRACHUD  C.   J.  The   appellant,  Muniappan,  was convicted by  the learned  Sessions Judge,  Dharmapuri under section 302  of the Penal Code and sentenced to death on the charge that  he had  committed the  murder of  his  mother’s brother also  called Muniappan  and his son Chinnaswamy. The conviction for  murder and the sentence of death having been confirmed by  the High  Court of  Madras by a Judgment dated October 23,  1979, this appeal has been filed by the accused by special  leave. The  leave is  limited to the question of sentence.      The judgments of the High Court and the Sessions Court, in so  far as  the sentence  is concerned,  leave much to be desired. In  the first  place, the Sessions Court overlooked the provision,  contained in  section 354(3)  of the Code of Criminal Procedure,  1973, which  provides, in  so far as is relevant,  that  when  the  conviction  is  for  an  offence punishable with  death, the  judgment shall  in the  case of sentence of  death state  special reasons for such sentence. The learned  Sessions  Judge,  in  a  very  brief  paragraph consisting of two sentences, has this to say on the question of sentence:           "When the  accused was  asked on  the question  of      sentence, he  did not  say anything.  The  accused  has      committed terrific double murder and so no sympathy can      be shown to him." The judgment  of the  Sessions Judge  is  in  Tamil  but  we understand from  the learned counsel, who appear in the case and both  of whom  understand Tamil  well enough,  that  the Tamil word  "Bhayankaram" has  been  rightly  translated  as "terrific". We  plead our  inability to  understand what  is meant  by  a  "terrific"  murder  because  all  murders  are terrific and  if the fact of the murder being terrific is an adequate reason  for imposing the death sentence, then every murder shall  have to be visited with that sentence. In that event, death sentence will become the rule, not an exception and section  354(3) will  become a  dead letter. We are also not satisfied  that the  learned  Sessions  Judge  made  any serious effort  to elicit from the accused what he wanted to say on  the question of sentence. All that the learned Judge says is  that "when the accused was asked on the question of sentence, he  did not  say anything". The obligation to hear the accused  on the question of sentence which is imposed by section  235(2)  of  the  Criminal  Procedure  Code  is  not discharged by putting a formal question to the accused as to what he has to say on the 273 question of  sentence. The  Judge must make a genuine effort to elicit  from  the  accused  all  information  which  will eventually bear  on the question of sentence. All admissible evidence is  before the Judge but that evidence itself often furnishes a  clue to  the  genesis  of  the  crime  and  the motivation of  the criminal.  It is  the bounden duty of the Judge to  cast aside  the formalities of the Court-scene and approach the  question of sentence from a broad sociological point of  view. The  occasion to  apply  the  provisions  of section  235   (2)  arises  only  after  the  conviction  is recorded. What  then remains  is the question of sentence in which not  merely the  accused but  the whole  society has a stake. Questions  which the  Judge can  put to  the  accused under section  235 (2)  and the  answers which  the  accused makes to  those questions  are beyond the narrow constraints of the  Evidence Act.  The Court,  while on  the question of sentence, is  in an  altogether different  domain  in  which facts and factors which operate are of an entirely different order than  those which  come into  play on  the question of

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conviction.  The   Sessions  Judge,  in  the  instant  case, complied with  the form  and letter  of the obligation which Section 235(2)  imposes, forgetting the spirit and substance of that obligation.      The High  Court condemned  the murders in terms equally strong by  calling them  "cold blooded" and thought that its duty to  consider the  propriety of the death sentence began and ended  with that  assertion.  Its  failure  to  see  the failings of  the Sessions  Court in the matter of sentencing led to an unexamined confirmation of the death sentence.      Coming to the judgement of the High Court itself, there are certain  features of  it which  need a close reflection. One of  the questions  before the  High Court  was as to the time when the double murder was committed because, upon that circumstance depended the veracity of the eye witnesses. The doctor who  performed the  post-mortem examination stated in his evidence  that the  deceased must  have taken their food about four or five hours before their death. The case of the prosecution was  that the  murders were  committed at  about 9.00 p.m.  P.W. 1, who is the son of the deceased Muniappan, stated in  his evidence  that the  deceased had  taken their food at  8.30 p.m..  This was a very important aspect of the case to  which the  High Court  should have applied its mind with care.  Instead,  it  took  an  extempore  expedient  by saying: "Both the deceased might have died a couple of hours after they  substained the  injuries at  9.00 p.m.".  It  is impossible to  appreciate how, after being shot in the chest and receiving the kind of injuries 274 which are  described in the post-mortem report, the deceased could have  survived for  a couple  of hours after they were shot.      Yet another  question which had an important bearing on the case was as to the delay caused in filing the F.I.R. The case of  the prosecution  is that  P.W. 1 went to the Police Station promptly  but the  solitary police constable who was present there  directed him  to go  to the village Munsif to have his  complaint recorded.  Now, the record of the Police Station shows  that  a  Sub-Inspector  of  Police  was  also present at  the Police  Station which falsifies the evidence that only  a police  constable was  present  at  the  Police Station at  the material  time and,  therefore,  the  F.I.R. could not  be recorded.  The High  Court has dealt with this aspect of the matter thus:           "In passing,  we may  mention that this is a grave      dereliction of  duty on  the part  of the policeman who      was in charge of the police station at that time and is      a matter  that ought  to be enquired into by the higher      authorities. We  hope that  suitable directions will be      issued to  subordinate officers  in  this  district  to      prevent a  recurrence of  such lapses  on the  part  of      policemen  when  reports  of  cognizable  offences  are      given."      The High  Court added  that the Inspector of Police was not on good terms with the Sub-Inspector and, therefore, the former made a false entry that the latter was present at the police station,  which, according  to the  High Court, was a serious matter  which required  to be  probed by  the Senior Officers. We  are not  quite sure  whether there is credible evidence on  record to show any enmity between the Inspector and the  Sub-Inspector and  whether the  High  Court  merely relied on  the statement  made by counsel for the State that the relations  between the two Police Officers were cordial. Whatever that  may be,  we do  not think that the High Court has explained satisfactorily why the F.I.R. was not recorded

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at the  police station  when P.W.1  went there. The ex-parte strictures passed  by the  High Court  are likely to involve the two  Police Officers  or at least one of them into grave consequences. They  should have been given an opportunity to explain themselves before the High Court persuaded itself to make such scathing criticism on their conduct.      There is  one more  aspect of  the Judgment of the High Court,  which,   with  great   respect,  we  are  unable  to appreciate. A  question arose  before the  High Court  as to whether a "muchilikka" bears the signature of the appellant. The High Court compared the 275 admitted signatures  of  the  appellant  with  the  disputed signature and  came to  the  conclusion  that  the  disputed signature was  of the  appellant  himself.  The  High  Court castigated  the   Public  Prosecutor   who   conducted   the prosecution in  the Sessions Court by saying that he had not followed the cross-examination of P.W.1 "with attention, and not chosen to bring to the notice of P.W. 1 that the accused had signed  the muchilikka, exhibit P. 1. We do not know how the High  Court came  to know that the Public Prosecutor was not following  the cross-examination  of  the  witness  with attention, but  we can  guess why  the High  Court made that observation. It  added in  parenthesis: "such  lapses on the part of this Public Prosecutor have become frequent and have been commented  upon by  us,  and  we  hope  that  at  least hereafter he  will take  some interest in the cases which he is conducting."  It is  not the  normal function of the High Court to  pass judgment on the conduct of lawyers who appear before the  lower courts.  One should understand if the High Court were to make its guarded observation on the conduct of lawyers appearing  before it.  But how the learned Judges of the High  Court had, in their capacity as Judges of the High Court, come  to know  that "such  lapses on the part of this Public Prosecutor have become frequent......," we are unable to understand.      These various  matters make  it unsafe  to confirm  the sentence of  death imposed  upon the  appellant. The reasons given by  the learned  Sessions Judge for imposing the death sentence are  not special  reasons  within  the  meaning  of section 354(3) of the Criminal Procedure Code and we are not sure  whether,   if  he   were   cognisant   of   his   high responsibility  under   that  provision,   he   would   have necessarily imposed  the death sentence. Accordingly, we set aside the  sentence of  death and  sentence the appellant to imprisonment for life. N.V.K.                                       Appeal allowed. 276