VERY IMPORTANT POINT
Review petitions are required to be dismissed. There is however, dissent of Shah, J. with regard to sentence aspect. Thus death penalty by a fractured mandate is simply questionable without success.

Headnote:Constitution of India-Article 137 -Scope of review in criminal proceedings-Supreme Court Rules, 1966-Order 40 Rules 1, 2 and 3-Review of criminal proceeding on the ground of an error apparent on the face of "record"-Three review applications in cases one related to TADA and the two others related to killings on caste grounds-Three Judges heard-One granted life imprisonment-Two affirmed death sentence on the rule of "rare of rarest cases"-Whether required to be referred to a larger Bench? (No)-All holding review petitions be dismissed, majority holding it in tota but dissenting M.B. Shah, J. allowing it part on question of sentence-Result-Review petitions dismissed accordingly (Constitution of India-Articles 21, 32 and C.P.C., 1908-Order 47 Rule 1).
       Held Per Arijit Pasayat (For himself and B.N. Agarwal, J.) : We may point out that there is a difference between a practice even if it is accepted to be prevalent, and the application of law. While former is variable, correct application of law is invariable. A practice may be departed from for good and compelling reasons, but in that sense application of law is invariable. We may point out here that in all cases relied upon for the proposition that death sentence would not be proper a rider was added by the Court that it was not of universal application and for good and compelling reasons departure can be made. We are primarily of the view that while deciding the question whether a case falls under "rarest of rare category" the nature of the offence and its impact on the society are determinative factors. Mere acquittal or lesser sentence imposed does not really relate to the gravity of the offence or its impact on the society. If after consideration of the materials, the Court comes to finding that it belongs to the "rarest of rare category", acquittal or sentence of life awarded by trial or High Court should not be considered to be a mitigating factor. As was observed in Suthendraraja s case (supra) the majority will be precluded as a matter of course from death sentence and that is not the correct position. (Para 14)
       A judgment of the final Court of the country final, and a review of such judgment is an exception. In our opinion compelling reasons for review are non-existent in these cases and acceptance of the prayer for reference to a larger Bench would be the creation of a new forum. (Paras 19 and 20)
       Held consequently : The review petitions are without any merit and deserve dismissal, which is so directed. (Para 25)
       Held Per M.B. Shah, J. : I am in respectful agreement with the reasons recorded by learned brother Pasayat, J. in arriving at the conclusion that the review petitions are required to be dismissed. Still however, I record my dissent with regard to sentence aspect. (Para 1)
       In the result, in my opinion, Review Petition (Crl.) No.497 of 2002 filed by Devender Pal Singh in Crl. Appeal No.993 of 2001; Review Petition (Crl.) No.626 of 2002 filed by Dharmendra Singh @ Dharu Singh in Criminal Appeal No.761 of 2001 and Review Petition (Crl.) No.627 of 2002 filed by Krishna Mochi and others in Criminal Appeal No. 761 of 2002, be partly allowed and their sentence be altered to imprisonment for life. (Para 5)

JUDGMENT

Shah, J.-I am in respectful agreement with the reasons recorded by learned brother Pasayat, J. in arriving at the conclusion that the review petitions are required to be dismissed. Still however, I record my dissent with regard to sentence aspect.

R.P. (Crl.) No. 497 of 2002 in W.P. (Crl.) No. 993 of 2001.

2. In this case, it is to be stated that I had arrived at the conclusion that the prosecution case depends solely upon the confessional statement. The reasons recorded therein for acquitting him are not required to be reiterated. However, considering the majority view also, in my opinion, if death sentence is altered to imprisonment for life, it would be sufficient to meet the ends of justice.

R.P. (Crl.) Nos. 626 and 627 of 2002 in Crl. A. No. 761 of 2001.

3. In this case, it is to be stated that appeal of the main accused Bihari Manjhi and others was allowed and were acquitted on the basis that there was no other evidence except the so-called confessional statement which was totally unreliable and faulty investigation. This is also a tit case for altering the death sentence and imposing sentence of imprisonment for life.

4. For this purpose, I would rely upon the dissent noted by Thomas, J. in Suthendraraja alias Suthenthira Raja alias Santhan and others v. State [(1999) 9 SCC 323) which is reproduced hereunder:-

"17. The Constitution Bench in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] has narrowed down the scope for awarding death sentence to the extremely restricted radius of "rarest of rare cases" in which the alternative lesser sentence of imprisonment for life is unquestionably foreclosed. In the main judgment in the present case one of the three Judges found that sentence of imprisonment for life would be sufficient to meet the ends of justice as far A-1 Nalini.

18. In a case where a Bench of three Judges delivered judgment in which the opinion of at least one Judge is in favour of preferring imprisonment for life to death penalty as for any particular accused, I think it would be a proper premise for the Bench to review the order of sentence of death in respect of that accused. Such an approach is consistent with Article 21 of the Constitution as it helps saving a human life from the gallows and at the same time putting the guilty accused behind the bars for life. In my opinion, it would be a sound proposition to make a precedent that when one of the three Judges refrains from awarding death penalty to an accused on stated reasons in preference to the sentence of life imprisonment that fact can be regarded sufficient to treat the case as not falling within the narrowed ambit of "rarest of rare cases when the alternative option is unquestionably foreclosed".

5. In the result, in my opinion, Review Petition (Crl.) No.497 of 2002 filed by Devender Pal Singh in Crl. Appeal No.993 of 2001; Review Petition (Crl.) No.626 of 2002 filed by Dharmendra Singh @ Dharu Singh in Criminal Appeal No. 761 of 2001 and Review Petition (Crl.) No. 627 of 2002 filed by Krishna Mochi and others in Criminal Appeal No.761 of 2002, be partly allowed and their sentence be altered to imprisonment for life.

Arijit Pasayat, J.-

6. These three review petitions have been filed in terms of Article 137 of the Constitution of India, 1950 (in short the Constitution ). Though the review applications contain certain references to the conclusions arrived at the judgment in Criminal Appeal No.761/2001 with death reference No. 1/2001, at the time of the hearing it was restricted to the question whether imposition of death sentence would be proper when one of the three Hon ble Judges recorded a finding of acquittal. So far as review application No. 626/2002 is concerned, same was the plea. In review application No. 627/2002 the plea was that when one Hon ble Judge held that life sentence should be proper, death sentence could not be imposed merely because the two other Hon ble Judges held so. Though at the outset learned counsel for the applica

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2002 Supreme(SC) 1247

VERY IMPORTANT POINTReview petitions are required to be dismissed. There is however, dissent of Shah, J. with regard to sentence aspect. Thus death penalty by a fractured mandate is simply questionable without success.

Cases Referred (13)

VERY IMPORTANT POINT
Review petitions are required to be dismissed. There is however, dissent of Shah, J. with regard to sentence aspect. Thus death penalty by a fractured mandate is simply questionable without success.