Judgment

KRISHNA IYER, J. - A death sentence, with all its dreadful scenario of swinging desperately out of the last breath of mortal life, is an excruciating hour for the judges called upon to lend signature to this macabre stroke of the executioners rope. Even so, judges must enforce the laws, whatever they be and decide according to the best of their lights; but the laws are not always just and the lights are not always luminous. Nor, again are judicial methods always adequate to secure justice. We are bound by the Penal Code and the Criminal Procedure Code, by the very oath of our office.

2. Section 354 (3) of the new Code gives the convicting judge, on a murder charge, a discretion to choose between capital sentence and life term. It is true that in the present Code, the unmistakable shift in legislative emphasis is on life imprisonment for murder as the rule and capital sentence an exception, to be resorted to for reasons to be stated (Ediga Anamma, AIR 1974 SC 799). Even so, the discretion is limited and courts can never afford to forget Benjamin Cardozos wise guidance:

"The judge, even when he is free is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains". (Cardozo: The Nature of the Judicial process: Yale University Press (1921)).

3. We have heard counsel on the merits and perused the paper book with some care and see no ground to disturb the conviction. The question of sentence projects sharply before us and what we have stated above turns our focus on circumstances justifying the graver sentence. The learned Sessions Judge has given valid reasons as to why he is imposing the death sentence. The guidelines laid down by this Court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trickery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty. When discretion has been exercised by the trial Court and it is difficult to fault that court on any ground, statutory or precedential, an appellate review and even referral action become too narrow to demolish the discretionary exercise of power by the inferior court. So viewed it is clear that the learned Judicial Commissioner has acted rightly in affirming the death sentence. We are unable to grant leave on this score either.

4. Counsel for the petitioner has urged that the affirmation by the Judicial Commissioners Court of Goa, Diu and Daman of the death sentence is illegal. According to him Section 377 of the old Code (which governs the instant case), is a missile which will hit down the confirmation by the Judicial Commissioner. The said section reads:

"377. In every case so submitted the confirmation of the sentence, or any new sentence or order passed by the High Court, shall, when such Court consists of two or more Judges, be made, passed and signed by at least two of them".

This section means, as we understand it. that when the High Court concerned consists of two or more judges, the confirmation or other sentence shall be signed by at least two of them. This provision obviously applies only to situations where the Court at the time of the confirmation of the death sentence, consists of two or more judges. It is true that S. 4 (1) (i) in relation to a Union Territory brings within the definition of the High Court the highes