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PETITIONER: NETI SREERAMULU

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT02/04/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. MATHEW, KUTTYIL KURIEN

CITATION:  1973 AIR 2551            1973 SCR  (3) 844  1974 SCC  (3) 314  CITATOR INFO :  R          1974 SC 799  (15)  E&D        1989 SC1335  (62)

ACT: Indian  Panel  Code, s. 302-Accused  convicted  for  murder- Whether   sentence  to  be  reduced  from  death   to   life imprisonment.

HEADNOTE: Appellant, aged 20, was convicted and sentenced to death for murdering  his wife on October 30, 1971 and the  High  Court confirmed  the  death  sentence on January  24,  1972.   The appeal  to  this Court was limited only to the  question  of sentence. In the High Court it was argued that the sentence should  be reduced  to life imprisonment because, the appellant  was  a young  man  of 20 years of age, the incident arose out  of sexual  jealousy and the crime was not  pre-meditated.   The High  Court  did  not consider  these  circumstances  to  be sufficient to merit a lesser sentence. In  this Court it was contended that appellant  acted  under grave provocation and secondly, the Courts below had ignored the effect of the recent amendment of s. 357 Cr.P.C. Allowing the appeal, HELD  : (1) While confirming the capital sentence, the  High Court  has an obligation to itself to consider why  sentence should  be imposed and should not be content with the  trial court’s  decision on the point.  It is the duty of the  High Court  to consider the proceedings in all their aspects  and come  to an independent conclusion on the  materials,  apart from the view expressed by the Sessions Judge., In so doing, the High Court will be assisted by the opinion expressed  by the Sessions Judge but the law requires that the High  Court should come to an independent conclusion of its own. [847E] Jumman  &  others v. The State of Punjab, A.I.R.  1957  S.C. 469, referred to. (ii)In  the  present  case, assuming  the  trial  court  was justified  in imposing the capital sentence, the long  lapse of time since the imposition of the capital sentence by  the trial  court and the consideration of the question  by  this Court,  constitutes  a  relevant  ground  for  reducing  the sentence to life imprisonment.  The appellant must have been

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in  the  condemned  cell ever since the  death  penalty  was imposed  on him.  The appellant must have been subjected  to acute mental agony ever since the death penalty was  imposed on him.  Therefore, the sentence of capital punishment  must be reduced to life imprisonment in the present case. [848C] in Piare Dusadh & Others v. Emperor A.I.R. 1944 F.C. 1,  the sentence  of death was reduced to one of transportation  for life  when  the  convict  had  inter  alia,  been   awaiting execution of death sentence for over a year.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 50  of 1973. 845 Appeal  by special leave from the judgment and  order  dated January 24, 1972 of the Andhra Pradesh High Court in Cr.  A. No. 796 of 1971 and Referred Trial No. 9 of 1971. O. P. Rana, for the appellant. The Judgment of the Court was delivered by DUA,  J.-In this appeal from the judgment and order  of  the Andhra  Pradesh High Court convicting the appellant for  the murder  of  one  Gadusula Seetha under s.  302,  I.P.C.  and sentencing him to death, special leave granted by this Court was   limited  only  to  the  question  of  sentence.    The preparation of the record was dispensed with and the  appeal was  directed to be heard on the S.L.P. paper book.  In  the order  granting  special leave dated March 1,  1973  it  was specifically directed as under :               "Let  an actual date of hearing of the  appeal               be  fixed ,which will not be longer  than  one               month  from  today, and notice of  the  actual               date of hearing of the appeal shall be sent to               the respondent forthwith." Earlier, on July 5, 1972 the special leave petition has been placed  before  the  vacation Judge (K.  K.  Mathew  J)  and notice  was directed to go to the respondent to  show  cause why  special  leave should not be granted in regard  to  the sentence only.  It is unfortunate that the matter could  not be  placed  before the Bench after service  of  ’show  cause notice  for  nearly eight months.  The  appellant  had  been sentenced  to death as far back as October 30, 1971  by  the Additional  Sessions Judge, West Godavari Division at  Eluru and  the death sentence was confirmed by the High Court.  on January 24, 1972.. The  prosecution  story as upheld by the High  Court  stated briefly  is that the deceased, who was a married woman,  was having :an illicit intimacy with the appellant and they were both living at Tadimalla.  Before they came to Tadmalla  to settle down there, the deceased was married to one Basavaiah of  Eythapuram.  There, she had developed  illicit  intimacy with her husband’s brother and is stated to have eloped with him.   Sometime later, she patched up with her  husband  and they  both then went down to Tadimalla to live there,  which was the native village of the deceased.  But there also  the deceased  developed illicit intimacy with the appellant  who belonged  to  Harijan community.   Apparently  the  deceased belonged  to a higher caste.  It appears that the  appellant and the deceased started living together in a portion of the appellant’s  house  in  Harijanwada  of  Tadimalla  village. According to the testimony of Osha Tharmaiah (P.W. 14)  even ,when  the  deceased was living with the appellant  she  was having  a liaison with this witness.  The deceased met  with her death on

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846 April  24, 1971 at about 6 a.m. About 20 days prior to  this date,  the deceased left the appellant’s house  and  started living in a portion of the house of Gapapati Bapanamma (P.W. 13),  the maternal grandmother of Osha Thammaiah (P.W.  14). According-  to  P.W.  14 the deceased did  so  in  order  to continue  her  illicit  intimacy  with  that  witness.   The appellant  apparently  felt distressed on  account  of  this conduct  on  the part of the deceased.  On  the  morning  of April  14, 1971, the deceased went to the Panchayat well  to take water to her house and while she was standing there  on the  platform of the well, the appellant went there,  caught hold  of  her pig-tail from behind with his  left  hand  and delivered two blows on the left side,, of her neck and  gave two or three blows on her left upper fore-arm.  The deceased tried  to  free herself from the appellant’s grip  but  fell down flat about six yards away from the well.  The appellant is said to have delivered another blow with the knife on the left  side of her abdomen which resulted in  her  intestines protruding out.  The deceased it appears died soon after the receipt of these injuries. In  the High Court on behalf of the appellant it was  argued that  the  sentence should be reduced to  life  imprisonment because(1)  the  appellant is a very young man of  about  20 years of age; (2) the incident arose out of sexual jealously and (3) the crime was not pre-meditated.  The High Court did not consider these circumstances to be sufficient to merit a lesser sentence, because from the evidence of the doctor and the. postmortem certificate given by him it was evident that the appellant had inflicted as many as ten incised  injuries out  of  which  two  injuries  were  fatal  and  even  after inflicting the injuries on the deceased indiscriminately the appellant stabbed her in the abdomen With such violence that the intestines actually came out and this happened after the deceased  had fallen down.  From the injuries caused by  the appellant  to  the  deceased the High Court  felt  that  the accused  must have intended to murder her and his  intention in  attacking  the deceased was only to chastise her  or  to teach  her  a  lesson.   Finding no  reason  to  reduce  the sentence passed by the trial court the High Court  confirmed the capital sentence. In  this Court it was contended on behalf of  the  appellant that  there was grave provocation for the appellant in  that the  appellant  had  sacrified everything for  the  sake  of keeping the deceased with him but she had proved  unfaithful and  had not only started living with someone else  but  had even  ridiculed him.  It was also contended that the  courts below  had  completely  ignored the  effect  of  the  recent amendment  of s.357, Cr.  P.C. and that they have  proceeded as if there must be some mitigating circumstance in order to justify the. imposition of a lesser penalty in case of  con- viction under s. 302, I.P.C. 847 The learned additional Sessions Judge, when dealing with the question of sentence observed that there were "absolutely no extenuating  circumstances to justify imposition  of  lesser sentence".   No  doubt, according to the  trial  court,  the murder  was committed in broad day-light in the presence  of many persons in the heart of the Harijanwada and nothing had transpired  on  the day of the occurrence which  could  have conceivably given any provocation to the appellant so as  to incite  him  to  commit  the  offence  and  the  murder  was committed  in cold blood with pre-meditation.  But  it  does appear to us that the learned additional Sessions Judge  was perhaps  not  fully  conscious  of  the  amendment  and  his

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approach  suggests that he was looking for  some  mitigating circumstance  to justify the imposition of  lesser  penalty. Having found none, the capital sentence was imposed. In  the  High Court also when the question of  sentence  was raised it was observed as follows :               "It  is  clear that the  accused  intended  to               murder  the  deceased.   We do  not  find  any               reason  to reduce the sentence passed  by  the               lower court.  We confirm the sentence." While  confirming  the capital sentence the High  Court  had quite clearly an obligation to itself consider what sentence should ’be imposed and not be content with the trial court’s decision  on  the  point unless some reason  was  shown  for reducing  that sentence.  As observed in Jumman & others  v. The  State of Punjab(1), in such a case, "it is the duty  of the  High  Court to consider the proceedings  in  all  their aspects  and  come  to  an  independent  conclusion  on  the materials,  apart  from the view expressed by  the  Sessions Judge.  In so doing, the High Court will be assisted by  the opinion expressed by the Sessions Judge, but under the  pro- visions of the law above-mentioned it is for the High  Court to come to an independent conclusion of its own." No  doubt, as observed by the High Court there were as  many as ten incised injuries on the deceased and injuries nos.  1 and  4 were considered by the medical evidence to be  fatal. It is also clear that on the day of the incident nothing had happened  to cause sudden provocation which should be  grave enough to make the appellant lose his balance of mind.   But in  that case an argument would be open to take the  offence out  of  the purview of ss. 300 and 302, I.P.C.  That  point does  not  appear to be open to the appellant  because  this appeal  was  not  admitted on the merits  and  we  are  only required to consider whether on the conclusions of the  High Court and on the assumption that the offence (1)  A. 1. R. 1957 S. C. 469. 848 is  one of murder, lesser penalty should be imposed in  *,he present  case.   Apart from the question  of  what  sentence should have been imposed by the trial court, in our opinion, it is open to this Court under Art. 136 of the  Constitution to  see what sentence permissible under the law  would  meet the ends of justice now when we are called upon to  consider that  question.   The  appellant was  clearly  on  terms  of improper intimacy with the deceased and was perhaps overcome by  a sense of jealousy or indignation of’ what  he  thought was  unfaithfulness on the part of the  deceased.   Assuming the  trial  court  was justified  in  imposing  the  capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion,  constitutes a  relevant  ground  for  reducing  the  sentence  to   life imprisonment.   In the present case the appellant must  have been in the condemned cell ever since October 30, 1971  when the sentence of death was imposed on him by the trial court. The High Court confirmed the sentence as far back is January 24,  1972.   Since  then  the  agonising  consciousness  and feeling  of  being  under the sentence of  death  must  have constantly haunted the appellant.  No doubt, this delay  has been  caused because of the time taken by the High Court  in disposing  of  the application for leave to appeal  to  this Court  and  because of the pendency of the  application  for special  leave to appeal in this Court since October,  1972. But that cannot detract from the acute mental agony to which the  appellant  must  have been  subjected  ever  since  the imposition of the capital sentence on him.

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We  find that in July, 1972 this Court issued notice to  the respondent State to show cause why special leave should  not be  granted  in  regard to the  sentence.   The  notice  was apparently  issued  without any delay.  But the  matter  was unfortunately  not set down for hearing till March 1,  1973. This delay was perhaps due to the fact that the  respondent- State  did not put in appearance.  Indeed, he State was  not represented  at  the  hearing either of  the  special  leave petition or of the appeal before us.  Now the importance  of speedy  disposal  of cases involving sentence of  death  has been recognised by this Court, for, in r. 21(2) of O.XXI,,it is expressly provided that in such cases the printed  record shall  be made ready and despatched to this Court  within  a period  of 60 days after the receipt of intimation from  the registry  of  this Court of the filing of  the  petition  of appeal  or  of the order granting special leave  to  appeal. The same anxiety and concern for speedy disposal of  special leave  petitions  in such cases is  equally  desirable.   It appears  that  the  importance  of  speedy  hearing  of  the petition  for special leave was not realised in  this  case. In  our view, the neglect or unwillingness of the  State  to enter  appearance should not have prevented the  posting  of the  special leave. petition for hearing with  the  greatest possible dispatch. 849 On the facts and circumstances of this case we feel that the interests  of  justice require that the  sentence  of  death should  be  reduced to that of life imprisonment and  we  so order.   The fact that the State of Andhra Pradesh  has  not cared  to enter appearance in spite of notice suggests  that in the opinion of the legal advisors of the State there  was no good cause to show against the reduction of sentence.  In Piare  Dusadh & others v. Emperor(1) the sentence  of  death was  reduced  to  one of transportation for  life  when  the convict  had  inter alia been awaiting  execution  of  death sentence   for  over  a  year.   The  Federal  Court   there observed:---               "In committing the offence the appellant  must               have   been   actuated  by  jealousy   or   by               indignation either of which would tend further               to  disturb the balance of his mind.   He  has               besides  been  awaiting the execution  of  his               death sentence for over a year.  We think that               in this case a sentence of transportation  for               life  would  be  more  appropriate  than   the               sentence of death." These  observations  are equally pertinent to  the  case  in hand. The  appeal  is  accordingly  allowed  and  the  appellant’s sentence is reduced to that of imprisonment for life. S.C.                              Appeal allowed (1) A.I.R. 1944 F.C.I. 850