IMAN ALI &. ANR. v.

STATE OF ASSAM

March 28, 1968

[V. RAMASWAMI, J. M. SHELAT AND V. BHARGAVA, JJ.]

Code of Crbninal Procedure, ss. 367, 439-Jndian Penal Code. ss. 396, 302-Accused convicted of 1nurder during dacoit; v-Trial Court passing Sentence of life imprison1nent lvit/Jout givbzg reasons-High Court en/Jc; ncing sentence to that of death-Considerations for interfering with discretion of trial court-Different considerationv do not necessaril." apply lihen conviction is under s. 396 and not s. 302 of I.P.C.

The appellants were convicted by the court of sessions for an offence punishable under s. 396 of the Indian Penal Code and sentenced to imprisonment for life.

Ty were held to have shot dead two inmates of a house in which along with others they had gone to commit dacoily.

One of the appellants filed an appeal in the High Court against his con viction. The High Court thereafter gave notice to both the appellants to shO\V cause why the sentence of impi'isonment passed againsteach of th.em 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 wos 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 app]y to a sentence under s. 302 J.P.C. would not apply to a case under s. 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 s. 396 and not under s. 302. On the above facts the enhancement of sentence by the High Court from life imprisonment to death was justified especially whea the trial court had not given any reasons for _awarding the lesser s-cntencc.

Jn Dalip Singh's cnse this Court only cautioned the appcl1ate 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-613BJ.

Dalip Singh & Ors. v. State of Punja/>. [1954] S.C.R. 145, 156. explained.

Lal Singh v. Emperor, A.I.R. 1938 Alld. 625, distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal 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. Rajentlra Chaudhuri, for the appellants.

Naunit Lal, for the respondent.

The Judgment of the Court. was delivered by Bbargava, J.

The appellants, Iman Ali and Jogesh Chan_dta.

Arjya, were convicted by the court of Session for an offence pumsh able under section 396 of the Indian Penal Code and sentenced to imprisonment for life.

The facts found by the <:ourt of Ses sion for convicting the appellants were that, on the mght between-

11th and 12th Mav 1962, between 1 and 2 a.m., the appellants, along with about fi or 13 others, com.nitted dacoit~ in the boue of 1 Tenu Arjya. At the time of comm1tmg the daco1ty the daco1ts broke open the door of the house with the crossbar 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 d her husband Tenu Arjya fell down dead. Thereafter, the dacmts de· mantled money from Hari Charan Arjya, the son of the two de ceased persons; They took away a sum of Rs. 2,500/. which.was. kept in a quilt and also removed the gold eaMings, on~ silver necklace and one waist band from the person of Golap1.

The commission of this offence in the manner descdbed 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 appel !ants guilty of the offence punishable under s. 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 pcrus ing the judgment, were of the prima facie opinion that, if the con viction 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 en hanced to sentence of death. Thereafter, tlie 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 affrnl ed the findings of fact of the Court of Session and enhanced the

ente.nce of both thse appellants, so that the sentence of rigorous 1mpnsonment for hfe was altered to sentence of .death with the

direction that they be hanged by the neck till they are d; ad. Doth the appellants sought leave from the High Court to appeal to this Cou:t, but leave was refused. Thereupon, both of them sought special leave under Article 13~ of the Constitution. By an order dated 8th December, 1967, this Court ranted special leave limit

SUPREME COURT REPORTS

[1968) 3 S.C.R.

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 th~ 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 S, ingh and OtMrs v. State of Punjab('), which was explained in the followinj! words :-

"In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons w.hicJi should normally be recorded considers it proper tb 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 sentenee from transportation. to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for till appellate court to say, or think, tl1at 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 tile 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 G 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 aimpllclter imder seefion 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

(i) [1954) S.C.R. "145 at p, 156.

Court of Session which has been upheld by the High Court that each of these appellant& 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 s. 396, I.P.C., was therefore, no less heinous than an offence under s. 302, l.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 v.

Emperor('), where it was held :

"We do not consider that as a general rule a sentence of death should necessarily follow a conviction under s. 396, 1.P.C., and this Section differs from s. 302, D l.P.C., in that respe.ct. The rule is under s. 302, that a sentence of death should follow unless reasons are shown for giving a lesser sentence.

No such rule applies to s. 396, 1.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 per- E son is convicted for the offence under s. 396, l.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 F constructively guilty of the offence punishable under s. 396; I.P.C.

A principle enunciated for such a situation cannot be applied to !\ case where there is direct evidence that a particular accused committed the murder himself, as is the finding i.n 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.

(I) A.I.R. 1938 Alld. 62S.