Judgement

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 one 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 earrings, 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.

2. 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 was 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 an order dated 8th December, 1967, this Court granted special leave limited 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.

3. 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 v. State of Punjab, 1954 SCR 145 at p. 156 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 b