minal 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 section 302 read with section 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 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 830 Pm 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 Pm
The First Information Report also mentioned the name  of Man Sukh PW 9 Ved Ram PW 4 and Jia Lal PW 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 section 30234 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 section 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 830 Pm or much later b whether the offence took place at 6 Pm or later when there was no light to identify the assailants and c whether the eye witnesses were at all present at the scene andor 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 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 Pm 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 vs The State of West Bengal and Anr1 Nar Singh and Anr
vs The State of Uttar Pradesh 2  and Sunder Singh vs State of Uttar Pradesh 
The appellants then objected that the point involved was one of interpretation of article 1341 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 article 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 in the High Court in the decision of an appeal
The provisions of section 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  2  3 AIR 1956 SC 411
p165 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 vs State of Bombay1
The appellants in reply contended that the interpretation put upon article 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
1An 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 ahas on appeal reversed an order of acquittal of an accused person and sentenced him to death or bhas 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 ccertifies 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 which the High Court certifies as fit for appeal
The sub clause does not state the conditions necessary for such certification
No rules under article 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  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 vs The State of West Bengal and Anr1 the appellant was convicted under section 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 JP 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 vs State of UP was not accepted when no reasons were given and that the certificate in Haripada Dey s1 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 1341c 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  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 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 article 1341c 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 s1 case
In Nar Singh s case1 24 persons were tried under sections 302 149 307149 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 1 779 charge was still subsisting a common certificate was granted to all of them
The High Court thought that the word case in article 1341 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 article 1361 for special leave but found it unfit
In Sunder Singh vs The State of UP 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 s2 case again furnishes an example of an extraordinary situation
The High Court had based a conviction for murder 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 vs State of Madhya PradeshB  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 2  3A I R 7 80 of article 1361 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 article 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 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 section 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 article 134 1 c as explained by us here
We have considered this case from the point of view of article 1361 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 vs The State of Himachal Pradesh1 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 vs 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


Summary:
The appellants were convicted by the Sessions Judge under section 302 with section 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 vs State of West Bengal  Anr
  Nar Singh  Anr
vs State of Uttar Pradesh   Sunder Singh vs State of Uttar Pradesh AIR 1956 SC 411 and Khushalrai vs State of Bombay  The appellants urged that these cases be reconsidered
A plea for the reduction of the death sentences was also made
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 article 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 article 1341 c is explained above
780 C F 781 A Case law considered
iiiThat 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 vs State of Himachal Pradesh and Pandurang Tukia and Bhillia vs State of Hyderabad   referred to