Judgment

SIKRI, CJI.: - In this case special leave was limited to the question of sentence only. The relevant facts for determining this point are as follows. The appellant, Vivian Rodrick was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having been committed to stand his trial by the Presidency Magistrate as early as July 31, 1963. The substance of the charges against the appellant were as follows:

(i) that on January 13, 1963 the appellant was a member of an unlawful assembly guilty of rioting, being armed with deadly weapons and as such punishable under Section 148, I. P. C.;

(ii) that on January 13, 1963 the appellant committed the murder of one Vincent D Rozario and thereby committed an offence punishable under Section 302, I. P. C.; and

(iii) that on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under Section 5 of the Explosive Substances Act.

Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and convicted under Section 302 read with Section 149, and also under Section 148, L P. C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the presiding Judge convicted the appellant under Section 302, I. P. C., and sentenced him to death. At the trial the appellant was also convicted for offences under Section 148. I. P. C., and Section 5 of the Explosive Substances Act, and sentenced to rigorous imprisonment for two years and three years respectively. The terms of imprisonment were directed to run concurrently.

2. The appellant filed a petition of appeal under Section 411-A, Criminal P. C., on September 7, 1964, challenging his conviction and the sentences imposed on him. The High Court, by its judgment dated September 19, 1967 in Criminal Appeal No. 5 of 1964; confirmed the conviction and sentences imposed on the appellant. In considering the question of sentence the High Court observed that

"the murder was a premeditated and cold-blooded one. There was not the slightest provocation from the side of the deceased. This is undoubtedly a fit case for capital punishment. No question of showing any leniency on the ground of tenderness of age arises as the appellant is now aged about 35 Years."

It was urged before the High Court that the sentence of death should be reduced to rigorous imprisonment for life on account of the long delay that had taken place in hearing the appeal. Although the High Court regretted the delay and the consequent mental suffering undergone by the condemned prisoner, it felt that the

"delay in executing the death sentence was not by itself a sufficient ground for which the Court should exercise its jurisdiction to commute the death sentence to one of imprisonment for life."

3. The appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same was refused on January 8, 1968. Having obtained special leave, the appellant filed an appeal to this Court (Criminal Appeal No. 190 of 1968). By its judgment dated April 30, 1969, this Court set aside the judgment and order of the High Court, dated September 19, 1967, and remanded the appeal to the High Court for fresh disposal and hearing in accordance with law and in the light of the observations contained in this Court s judgment. This Court in its judgment in Cr. App. No. 190 of 1968 observed, regarding the four other co-accused, as follows:

"Though the conviction was for an offence under Section 302 read with Section 149, I. P. C., curiously they were sentenced to varying terms of imprisonment, and none of them challenged their conviction in appeals."

4. On remand the appeal was again dismissed by the High Court on February 6, 1970. Chakrabarti, J., with whom Amaresh Chandra Roy, J., agreed, again considered the question of sentence and held that although there had been a delay of more than f