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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: DHARMENDRA SINGH & ANR.

DATE OF JUDGMENT:       21/09/1999

BENCH: N. Santosh Syed Shah Mohammed quadri

JUDGMENT:

 SANTOSH HEGDE, J.

     Leave  granted  in  the above S.L.Ps.   Heard  learned counsel  for  the  parties.   These  appeals  are  preferred against  the  judgment and order dated 19.8.1997  passed  in Crl.A.Nos.2090/95 and 2011/95 by the High Court of Allahabad wherein  the  High Court while confirming the conviction  of the  respondents  herein and 4 others in connected  appeals, rejected  the  reference made by the learned Sessions  Judge for  confirmation  of death sentence of the respondents  and commuted the said sentence to life imprisonment for offences punishable  under Section 302 IPC.  There is an accompanying SLP  filed  by the complainant in the case from which  these appeals  emanate.   We  consider it proper to deal  with  it separately.  The two respondents in these appeals along with 4  other persons were charged with offences punishable under Sections  147/148/149/302  IPC  for   having  committed  the murders  of Pitamber Singh aged about 75 years, Ramwati Devi aged  about 32 years, (Ravi) Ravindra and Narendra both aged 12  years  and Reeta aged about 15 years.   The  prosecution case, narrated in brief, necessary for the disposal of these appeals  is as under :  The complainant - Chander Mohan  had purchased a part of the family house and some land belonging to  the  family  of   Dharmendra,  respondent  herein,  from latter’s  grand-father and started living with his family in that  part  of  the residential building purchased  by  him. Dharmendra   resented  this  purchase  as  he  himself   was intending  to  purchase  the   same.   Narendra,  the  other respondent in these appeals who is stated to be a student of LL.B.,  was  harbouring evil designs on Kumari Reeta and  in furtherance  thereof he was constantly teasing her when  she used  to  be  on  her way to school.  It is  stated  by  the prosecution that in order to fulfil his lust, about 4-5 days prior to the occurrence, he had tried to molest her and also threatened  her  with dire consequences should she  dare  to complain  against  him.   It is stated that inspite  of  the threat  Reeta  did complain to her Uncle,  the  complainant, about  the  misdemeanour  of Narendra sequel  to  which  the complainant  and  his  nephew gave a thrashing to  the  said accused  Narendra.   It  is  in this  background  of  hatred entertained  by Dharmendra and Narendra for their own causes that  they  enlisted  the support of the other  accused  who happened to be their close friends to wreak vengeance on the family of the complainant, consequent to which the 6 accused together  at about 3 a.m.  in the night intervening 26th and 27th  May,  1994  caused the death of all the 5  persons  in

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their  sleep  by inflicting multiple stab injuries.   It  is stated  by the prosecution that Pws.1 to 3 had witnessed and identified  these  6  accused persons leaving the  place  of occurrence with blood stained weapons.  The learned Sessions Judge  on considering the material placed by the prosecution before  him, came to the conclusion that the prosecution had proved the charges against the accused persons and held them guilty  of  the said charges, and while convicting the  said persons  awarded  life sentence in regard to the  4  accused persons  who  are not before us now.  In regard to  the  two accused respondents who are before us now, the learned Judge from  the  facts and circumstances of the case came  to  the conclusion  that  they had committed a crime which could  be termed  as  ‘rarest  of  the   rare  cases’.   Hence,  after assigning reasons, proceeded to award the extreme penalty of d eath.  The matter was taken to the High Court at Allahabad both by way of appeal by the accused persons and also by way of  ‘reference’ for confirmation of the death sentence.  The High  Court  vide  its judgment dated 19.8.1997  upheld  the conviction  of all the accused persons and while  confirming the  sentence awarded on the other accused persons, who  are not  respondents  herein,  came to the conclusion  that  the sentence  of  death was not called for in view of  the  fact that  the  two respondents - Dharmendra and Narendra -  were languishing  in  death  cell since  3.6.1994  and  28.5.1994 respectively  which is for a period of more than 3 years and consequently,  reduced t he sentence to that of imprisonment for life.  Against the judgment of the High Court confirming the  conviction  and awarding of sentence, the  accused  had preferred  SLP  (Crl) Nos.73-75/98 before this  Court  which came to be dismissed on 23.1.1998.  Against the order of the High Court refusing to confirm the sentence of death awarded to the respondents herein, the State has preferred the above appeals  and the complainant has also preferred a  companion petition which we have already stated that we will deal with separately.   At  the outset, the learned counsel  appearing for  the  respondents herein contended that if the Court  is inclined  to go into the merits of the State appeal then  we should  consider the effect of Section 377(3) of the Code of Criminal  Procedure (for short ‘the Code’) read with Section 386c(iii)  thereof.  It is his contention that in the  event of  the appellate court entertaining an appeal of the  State against  sentence then it is open to the accused not only to show cause against the enhancement of such sentence but also to  plead for his complete acquittal or for reduction of the sentence.  It was also pointed out to us that in view of the provisions  of Section 386 of the Code, it is open to us  as an  appellate court in an appeal for enhancement of sentence to  alter the sentence also.  He placed strong reliance on a decision of this Court in U.J.S.  Chopra v.  State of Bombay (AIR 1955 SC 633).  Section 377(3) of the Code reads thus :- "377.   Appeal by the State Government against sentence.-(1) x  x x (2)x x x (3)When an appeal has been filed against the sentence  on  the ground of its inadequacy, the  High  Court shall  not  enhance the sentence except after giving to  the accused  a  reasonable opportunity of showing cause  against such  enhancement  and while showing cause, the accused  may plead  for  his  acquittal  or  for  the  reduction  of  the sentence."

     A perusal of this Section shows that this provision is applicable only when the matter is before the High Court and the  same is not applicable to this Court when an appeal for enhancement  of  sentence is made under Article 136  of  the

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Constitution.   It  is  to be noted that an appeal  to  this Court  in  criminal matters is not provided under  the  Code except  in  cases  covered by Section 379 of the  Code.   An appeal  to this Court under Article 136 of the  Constitution is  not the same as a statutory appeal under the Code.  This Court under Article 136 of the Constitution is not a regular court  of appeal which an accused can approach as of  right. It  is  an extraordinary jurisdiction which  is  exercisable only  in exceptional cases when this Court is satisfied that it   should  interfere  to  prevent   a  grave  or   serious miscarriage  of justice, as distinguished from mere error in appreciation   of   evidence.      While   exercising   this jurisdiction,  this  Court  is  not bound by  the  rules  of procedure  as applicable to the courts below.  This  Court’s jurisdiction  under  Article  136  of  the  Constitution  is limited  only by its own discretion (See Nihal Singh &  Ors. v.   The State of Punjab {AIR 1965 SC 26}).  In that view of the matter, we are of the opinion that Section 373(3) of the Code  in terms does not apply to an appeal under Article 136 of  the Constitution.  We are supported in this view of ours by  a  judgment of this Court in Chandrakant Patil etc.   v. State  through CBI etc.  (1998 3 SCC 38) wherein this  Court while  considering  a  similar argument held :   "The  right envisaged  in  Section 377(3) of the present Code  shall  be confined  to appeals presented by the Government to the High Court  against sentence on the ground of its inadequacy." On the  contrary,  the judgment relied upon by learned  counsel for the respondents in Chopra’s case (supra) will not assist him  because  in that case this Court was dealing  with  the right  of  an accused to plead for acquittal in a  statutory appeal filed by the State for enhancement of sentence before the  High Court which is available under the Section itself. This  does not mean that this Court will be unmindful of the principles  analogous  to those found in the Code  including those  under  Section  373(3) of the Code while  moulding  a procedure for the disposal of an appeal under Article 136 of the  Constitution.   Apart  from  the  Supreme  Court  Rules applicable  for the disposal of the criminal appeals in this Court, the Court also adopts such analogous principles found in  the Code so as to make the procedure a "fair  procedure" depending  on  the facts and circumstances of the case.   In the  instant  case both the Trial Court and the  High  Court have  considered  the  entire material on  record  and  have concurrently  found  the respondents guilty of  the  offence they  are  charged.   As  against the  said  conviction  and sentence,  the  respondents  had   preferred  a  substantive special leave petition under Article 136 of the Constitution before  this  Court which was dismissed on merits,  and  the respondents  have  not chosen to prefer any review  petition against  the said dismissal order.  In this background we do not consider it appropriate to accede to this request of the respondents  because neither the facts and circumstances  of the  case nor public interest requires us to do so.  In  the light  of  the fact that the appeal is one for  seeking  the extreme penalty of death, we have also permitted the learned counsel  representing the appellant in the companion  matter to  address us on the merits of the State appeal even though that  petition  is  not  taken up  for  hearing  with  these appeals.  On behalf of the State as well as the complainant, it  was  argued  that the learned Sessions Judge  had  while awarding  death  sentence to the respondents  herein,  given cogent  and  acceptable  reasons as required  under  Section 354(3)  of  the Code and the High Court while agreeing  with the  said finding of the trial court seriously erred both in law  and  in  fact  in coming to  the  conclusion  that  the

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respondents  herein  were  languishing in death  cell  since 3.6.1994  and  28.5.1994 respectively i.e.  for more than  3 years,  hence, it is not proper to award death sentence.  It was  contended that this reasoning of the High Court is  not sustainable either in law or on facts.  It is contended that factually  the  High Court was in error in saying  that  the said persons were in death cell since 3.6.1994 and 28.5.1994 respectively.   It was pointed out to us that 28.5.1994  and 3.6.1994  are the dates on which the respondents were  taken into  custody as under-trial prisoners and they were not  in death  cell.   The  learned  Sessions  Judge  awarded  death sentence  to  these accused persons only on 5.12.1995  which came  to  be  altered by the judgment of the High  Court  on 19.8.1997.   It  is argued that even this period  cannot  be labelled as being in the death cell since the death sentence was  yet  to be confirmed by the High Court.  At  any  rate, according  to  the State, the time-lag between  awarding  of death  sentence  i.e.  5.12.1995 by the trial court and  the judgment  of the High Court i.e.  19.8.1997 being 21  months (not  even  two  years),  the   High  Court  seems  to  have misdirected  itself  in refusing to confirm the sentence  of death.  It was also argued that on facts the crime committed by  these  respondents along with other accused  persons  is such  a  dastardly  and heinous crime which  cannot  but  be called   ‘rarest  of  the  rare’   case  in  which  these  2 respondents  being the principal perpetrators of the  crime, were  rightly  awarded  capital punishment by  the  Sessions Court.   It is further argued that the High Court has agreed with  this finding but refused to confirm the sentence on an erroneous  ground which is unsustainable in law,  therefore, it  is a fit case in which the judgment of the High Court be reversed  and the sentence be enhanced.  Learned counsel for the  respondents,  per contra, has strenuously  argued  that this  is  not a fit case even for conviction;  much  less  a case  for  extreme penalty of death.  It was contended  that both  the  courts  below  have   based  the  conviction   on conjectures  and surmises against all probabilities.  At any rate,  the  prosecution has failed to establish who  amongst the  6  accused  persons has actually dealt the  blows  i.e. individual  overt  acts  that  have  not  been  established. Therefore,  even  if  the conviction is to  be  upheld,  the capital  punishment  should not be granted.  In  support  of this  contentions,  respondents’  counsel   relied  upon   a judgment  of  this Court in Ronny @ Ronald James  Alwaris  & Ors.   V.   State of Maharashtra (1988 3 SCC 625).   It  was also argued that even otherwise the facts of the case do not warrant   imposition  of  death   sentence  and  these   two respondents  having reconciled themselves to the judgment of the  High  Court, have an expectation of survival and  which expectation  of  theirs  should not be destroyed.   We  have carefully  perused the evidence adduced in this case, to the limited  extent  of examining whether the case in hand is  a case which could be termed as rarest of the rare cases so as to  invoke  the  extreme  penalty  of  death.   The  learned Sessions  Judge while assigning special reasons for awarding the capital punishment came to the conclusion that the crime in  question was a dastardly crime involving the death of  5 innocent  human  beings  for the purpose  of  achieving  the sadistic  goals  of  Dharmendra  and  Narendra,  respondents herein,  to  avenge  their  respective  grouse  against  the complainant  and his niece Reeta by eliminating 5 members of the  family.  Learned Sessions Judge distinguished the  case of  the 4 other accused with that of these respondents based on  the motive and on the ground that these respondents were the  principal  perpetrators of the crime.  It is seen  that

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the  High  Court  has concurred with this reasoning  of  the Sessions  Judge.  However, the High Court on the ground that the  accused have languished in the death cell for 3  years, altered  the sentence to life imprisonment.  At this  stage, it  is necessary to extract the reasoning of the High  Court on  this  score  :   "x x x the  appellants  Dharmendra  and Narendra  are  languishing in death cell since 3.6.1994  and 28.5.1994,  respectively,  i.e.   more   than  three  years. Consequently  now  it  may  not be  proper  to  confirm  the sentence of death passed on them by the trial court."

     The  High Court has erred in coming to this conclusion both factually as well as inferentially.  First of all these respondents  were not in death cell for 3 years nor is there a  law  which says that a person in death cell for  3  years ipso  facto  is entitled for commutation of death  sentence. While  it  is true that prolonged trial or execution of  the death  sentence beyond all reasonable period may be a ground for commuting the death sentence in a given case, it will be highly  erroneous to lay down as a principle in law or  draw an  inference  on  fact that awarding of death  sentence  is improper in cases where accused persons are in custody for 3 years  or more, even though the facts of the case  otherwise call  for  a death sentence.  If the view taken by the  High Court  in this case is to be accepted as a correct principle then  practically  in no murder case death sentence  can  be awarded,  since in this country normally a murder trial  and confirmation  of  death  sentence takes more than  3  years. This  Court  speaking through a Constitution Bench  in  Smt. Triveni  Ben  etc.  vs.  State of Gujarat etc.  (1988 4  SCC 574)  has held :  "No fixed period of delay could be held to make  the  sentence  of death inexecutable .  .   ."  It  is useful  to  notice herein that in Triveni Ben’s  case,  this Court was considering the delay in execution of the sentence and not even imposition of sentence, a stage much earlier to execution.   Therefore,  we have no doubt in coming  to  the conclusion  that  the High Court has erred in the  reasoning given  by  it in refusing to confirm the sentence  of  death awarded  by  the trial court.  Before examining the case  of the State for enhancement of the sentence on merits, we will have  to  bear in mind that this Court would not  ordinarily interfere  in the sentence unless there is any illegality or it involves any question of principle.  We are also aware of the  legal  principle  that the question of  sentence  is  a matter  of discretion and that it is well-settled that  when discretion  has  been  properly   exercised  along  accepted judicial  lines, an appellate court should not interfere  to the  detriment  of  an accused except for  very  strong  and cogent  reasons.  We have noticed earlier that the basis  of the  High Court’s judgment to the extent that it has refused to  confirm the death sentence awarded by the trial court is factually   incorrect   and  opposed   to   accepted   legal principles.   Consequently,  it has failed to  exercise  its discretion  along  accepted  judicial lines.   We  will  now consider  whether there are strong reasons for accepting the decision of the trial court to impose death sentence and are these  reasons strong enough to reverse the decision of  the High  Court.   We have already noticed that the trial  court has given cogent reasons for awarding the extreme penalty of death  in regard to these respondents.  We have also noticed that the High Court has, as a matter of fact, concurred with the  conclusions  arrived  at  by the trial  court  in  this regard.   In  this  context,  it is useful  to  extract  the observations  of the High Court which are as under :  "x x x As  the whole episode was planned and prepared by Dharmendra

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and  Narendra;   hence they deserve extreme penalty for  the commission of five murders two boys of 12 years, Km.  Reeta, Ramwati,  wife of complainant, and Pitamber an old person of 70  years.  They have committed murders in a very cruel  and brutal  manner  inflicting  as many as 53 injuries  on  five persons.   The  court below has not committed any  error  in awarding  the  extreme  penalty  of death  to  Narendra  and Dharmendra,  who were instrumental behind the whole  episode of awful tragedy."

     A  perusal of this conclusion of the High Court  gives the  impression  that  but for the erroneous  impression  it carried,  it  would  have confirmed the  sentence  of  death awarded  to these 2 respondents.  It was argued on behalf of the  respondents that the findings of the courts below  even in  regard to the commission of the offence, are contrary to facts.   Hence,  at  least,  in regard to  the  awarding  of sentence,  we should not interfere in these appeals.  So far as  the commission of the offence is concerned, the  Special Leave  Petition  filed by the respondents was  dismissed  by this  Court and the findings of the courts below have become final.   As  stated  above, we have examined  ourselves  the evidence   in  this  case  for   the  limited   purpose   of ascertaining  whether  this case could be treated as one  of the rarest of rare cases, calling for the extreme penalty of death;   more so in the background of the argument on behalf of the respondents that the prosecution has not been able to establish the individual o vert acts of the accused persons. The  prosecution in this case, as accepted by the two courts below,  has  established the fact that Dharmendra  nursed  a grudge  against  the  complainant for having  purchased  the family  property including the residential part against  his desire   to  own  the  same.    The  prosecution  has   also established  that Narendra, though an educated person who at the time of the incident, was pursuing his LL.B.  course had been entertaining a lust towards Reeta and in furtherance of this  desire had been teasing her and also a few days  prior to  the  incident,  had tried to molest  her  consequent  to which,  upon a complaint made by Reeta, the complainant  and his  nephew  had  assaulted  Narendra.   This  case  of  the prosecution  shows that these two persons in furtherance  of their  diabolic  motive conspired to teach a lesson  to  the complainant  by killing such of those members of the  family who  were  vulnerable and helpless.  This is clear from  the timing  of  the attack which was when other able members  of the  family  were away from the house and only the aged  and the  weak  remained alone in the house.  Also the fact  that they  solicited  the  help of four of their  friends  (other accused)  shows  that  the  intention was to  kill  as  many members  of the complainant family as possible, irrespective of  the  fact  whether the victims were the cause  of  their vengeance  or  not.   The ghastly manner of  attack  on  the deceased,  which  is  evident from the post  mortem  report, shows  that the act in question was premeditated, senseless, dastardly  and  beyond  all human reasoning inasmuch  as  53 wounds  were inflicted on the 5 deceased persons;  each  one suffering  at  least 10 wounds on an average.   The  attacks were  aimed  at such parts of the body in  succession  where even  a  single  stab would have, in  the  ordinary  course, sufficed  to cause death.  The denuding of the lower part of the  body  of  Reeta showed an element of  perversity  which could  be  attributed  to  the mind of  frustrated  men  who totally lacked human sensitivity.  A holistic examination of the  material  on record shows that the barbaric offence  in question  could  only  be termed as a ‘rarest of  the  rare’

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case.   Learned counsel for the respondents, however, relied upon  the judgment of this Court in Ronny’s case (supra)  in support  of his contention that even if the act of murder is to  be assumed to be brutal since the prosecution has failed to  establish the overt acts of the individual accused,  the sentence  of death should not be awarded.  We have carefully perused  the said judgment.  We do not find that this  Court has  enunciated any such proposition in absolute terms.   It is  possible  in a given set of facts that the  court  might think  even  in a case where death sentence can be  awarded, the  same need not be awarded because of the peculiar  facts of  that  case  like the possibility of one or more  of  the accused  being  responsible for offences less culpable  than the other accused.  In such circumstances, in the absence of their  being no material available, to bifurcate the case of each accused person, the court might think it prudent not to award  the  extreme  penalty  of death.   But  then  such  a decision  would  rest on the availability of evidence  in  a particular  case.   We do not think that  a  straight-jacket formula  for awarding death sentence can be evolved which is applicable  to all cases.  The facts of each case will  have their  own implication on the question of awarding sentence. In  the  Ronny’s  case (supra), this Court  on  facts  found extenuating factors to curb the sentence which is clear from the  following  extract from the said judgment :- "From  the facts and circumstances, it is not possible to predict as to who  among the three played which part.  It may be that  the role  of  one has been more culpable in degree than that  of the  others and vice versa.  Where in a case like this it is not  possible  to  say  as to whose case  falls  within  the "rarest  of  the  rare" cases, it would serve  the  ends  of justice  if  the  capital punishment is commuted  into  life imprisonment."  Whereas  in the appeals before us the  trial court  as well as the High Court have distinguished the case of these two respondents vis-a-vis the other accused persons for  cogent reasons.  We have also agreed with this view  of the  courts  below.   Therefore, the  predicament  that  was existing in Ronny’s case (supra), apart from the extenuating factors,  does  not  exist in this case.   In  Ronny’s  case itself, this Court while discussing the role of the Court in imposing  the  extreme penalty in Para 40 of the said  case, has  observed thus :  "The obligation of the court in making the  choice  of death sentence for the person who  is  found guilty  of  murder is onerous indeed.  But by  sentencing  a person  to death, the court is giving effect to the  command of law which is in public interest whereas in committing the murder  or  being  privy to commit murder, even if it  be  a vengeance  for another murder, the convict is violating  the law which is against public interest." These observations of this Court show that there is an obligation on the courts in appropriate  cases to award the sentence of death.  The last argument  advanced on behalf of the respondents is based  on the  expectation of survival entertained by the  respondents after the judgments of the High Court.  It is contended that after  the High Court refused to confirm the death sentence, the  respondents  have  entertained a  just  expectation  of survival  and,  therefore, we should not interfere with  the said  judgment.   We  do not find any legal basis  for  this argument.   In  a judicial system like ours where  there  is hierarchy of courts, possibility of reversal of judgments is inevitable,  therefore, expectations of an accused cannot be a   mitigating  factor  to  interfere   in  an  appeal   for enhancement  of sentence if the same is otherwise called for in  law.  Taking into consideration the brutality of attack, number  of  persons  murdered,  age  and  infirmity  of  the

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victims,  their vulnerability and the diabolic motive,  acts of  perversion on the person of Reeta, cumulatively we  find the sentence awarded by the trial court was just and proper. We  have  examined this case carefully and having given  our anxious  thought  to the facts, we have found no  mitigating circumstances  in favour of the respondents herein.  We are, therefore,  constrained to reverse the judgment of the  High Court  by allowing these appeals, setting aside the judgment and orders of the High Court to the extent impugned in these appeals,  and  confirm the sentence of death awarded by  the trial court.

     SLP  (Crl) ___/99) (Crl.MP Nos.:2445-46/98) In view of the  judgment delivered by us in Crl.A.  Nos.____/99 (@  SLP (Crl) Nos.1712-13/98), no orders are called for in this case and the same is disposed of accordingly.