1999 Supreme(SC) 1091

1999(8) Supreme 183
Supreme Court of India
(From Allahabad High Court)
S.S. Mohammed Quadri and N. Santosh Hegde, JJ.
State of U.P. -Appellant
versus
Dharmendra Singh & Anr. etc. -Respondents
Criminal Appeal Nos. 982-983 of 1999
(Arising out of SLP (Crl.) Nos. 1712-13 of 1998)
With
Criminal Appeal Nos. 984-985
(Arising out of SLP (Crl.) Nos. 3157-58 of 1999)
Decided on 21-9-1999
Counsel for the Parties :
For the Appearing Parties : D.D. Thakur, U.R. Lalit, M.N. Krishnamani, Sr. Advocates, Pramod Swarup, A.S. Pundir, R. Srinivasan, N.N. Bhatt, Vijay Prakash, Lalit Kumar, Vimal Dave, Javed M. Rao, Girish Chandra, K.M.K. Nair, Dr. Ramesh Haritosh, Rohul Singh, Vipin Nair, Advocates.

Important Points
1. Section 377(3) shows that this provision is applicable only when the matter is before the High Court and the same is not applicable to Supreme Court when an appeal for enhancement of sentence is made under Article 136 of the Constitution.
2. Fact that persons convicted to death sentence have been languishing in death cell for more than three years is not a ground to commute death sentence to life imprisonment.
3. 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.

Headnote:(i) Code of Criminal Procedure, 1973-Section 377(3) r/w Article 136 of the Constitution of India-Application of provisions of Section 377(3) to appeal under Article 136 -Section 377(3) is applicable only when matter is before High Court-It is not applicable to Supreme Court when an appeal for enhance­ment of sentence is made under Article 136 of Constitution.

       Held : A perusal of this Section 377(3) shows that this provision is applicable only when the matter is before the High Court and the same is not applicable to Supreme Court when an appeal for enhancement of sentence is made under Article 136 of the 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 Criminal Procedure Code in terms does not apply to an appeal under Article 136 of the Constitution. (Para 9)

       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. (Para 10)

       (ii) Constitution of India-Article 136 r/w Section 377(3) of the Code of Criminal Procedure, 1973 -Appeal for enhancement of punishment by SLP-Applicability of provisions of Section 377(3) of Cr.P.C.-Held : Provision of Section 377(3) is applicable only when matter is before High Court-It is not applicable to Supreme Court when an appeal for enhancement of sentence is made under Article 136 of Constitution. (Paras 9 & 10)

       (iii) Code of Criminal Procedure, 1973-Sections 354, 366, 367 and 368-Death sentence - Confirma­tion of-High Court while agreeing with finding that case was rarest of rare case warranting imposition of death sentence commuted sentence into life sentence holding that convicts were languishing in death cell for more than three years-Unten­able-There is no law which says that a person in death cell for more than three years ipso facto is entitled for commutation of death sentence.

       Held : 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. The High Court has erred in the reasoning given by it in refusing to confirm the sentence of death awarded by the trial Court. (Para 15)

       Supreme Court would not ordinarily interfere in the sentence unless there is any illegality or it involves any question of principle. We are also award 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. (Para 16)

       (iv) Indian Penal Code, 1860-Section 302 r/w Sections 354, 366, 367 and 368-Murder-Death sentence - Sustainability of-Mur­der of 5 per­sons including two minors while they were asleep-53 stab injuries on persons of victims-All injuries were on vital parts-Attack premedi­tated, on account of personal grouse-Trial Court gave justifiable reason to award death sentence to convicts in question while awarding life sentence to four other co-accused-High Court however commuting sentence into life sentence on ground convicts were languishing in death cell for more than three years -Unjustified-No law that pro­vides that a person in death cell for more than three years ipso facto is entitled for commutation of death sentence-Act in question premed­ita­ted senseless, dastardly and beyond all human reasoning - Plea that con­victs having reconciled themselves to judgment of High Court have just expectation of survival cannot be a mitigating factor-Barbaric offence in question could be termed as a ‘rarest of rare cases’-Plea that prosecution failed to establish overt acts of individual accused and hence sentence of death could not be awarded-Not tenable-Death sentence as award­ed by Trial Court confirmed.

       Held : 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’ case. (Para 20)

       The argument 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 cannot be accepted. 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. (Para 21)

       The argument 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. (Para 24)

       Taking into consideration the brutality of attack, number of persons murdered, age and infirmity of the 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. (Para 25)