iminal 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 section 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 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 vs 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) ; 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 persons were shot and killed even though they had not even tried to put up any resistance.
The offence under section 396, I.P.C., was therefore, no less heinous than an offence under section 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 vs 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 section 396, I.P.C., and this Section differs from section 302, I.P.C., in that respect.
The rule is under section 302, that a sentence of death should follow unless reasons are shown for giving a lesser sentence.
No such rule applies to section 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 section 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 section 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.


Summary:
The appellants were convicted by the court of sessions for an offence punishable under section 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 section 302 I.P.C. would not apply to a case under section 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 section 396 and not under section 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 the reasons that he had exercised a judicial mind in not awarding the sentence of death.
[612 F 613B].
Dalip Singh & Ors.
vs State of Punjab ; , 156, explained.
Lal Singh vs Emperor, A.I.R. 1938 Alld.
625, distinguished.