Iman Ali & ANR Vs. State of Assam
 INSC 85 (28 March 1968)
28/03/1968 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA RAMASWAMI, V.
CITATION: 1968 AIR 1464 1968 SCR (3) 610
R 1980 SC 898 (149)
Code of Criminal Procedure ss. 367,
439-Indian Penal Code, ss. 302-Accused convicted of murder during
dacoity--Trial Court passing sentence of life imprisonment without giving
reasons-High Court enhansing sentence of to that of death--Considerations for
interfering with discretion of trial court--Different considerations do not
necessarily apply when conviction is under s.396 and not s.302 of I.P.C.
The appellants were convicted by the court of
sessions for an offence punishable under s. 396 of the Indian Penal Code and
sentenced to imprisonment for life. They were held to have shot dead two
inmates of a house in which along with others they had gone to commit dacoity.
One of the appellants filed an appeal in the High Court against his conviction.
The High Court thereafter gave notice to both the appellants to show cause why
the sentence of imprisonment passed against each of them should not be enhanced
to death. After hearing them the High Court sentenced them both to death. The
order was challenged in this Court and it was urged that the High Court should
not have interfered with the discretion of the Sessions Judge in the matter of
passing the appropriate sentence and that the considerations which apply to I
sentence under s. 302 I.P.C.
would not apply to a case under s. 396 I.P.C.
HELD : (i) The offence committed by the
appellants was heinous and committed in cold blood with the sole object of
committing dacoity. It was not a case of constructive liability but the
appellants had themselves committed the murders and therefore no advantage
could be taken of the fact that the conviction was under s. 396 and not under
s. 302. On the above facts the enhancement of sentence by the High Court from
life imprisonment to death was justified especially when the trial court had not
given any reasons for awarding the lesser sentence. In Dalip Singh's case this
Court only cautioned the appellate court against interfering if the discretion
of the trying judge is exercised for reasons recorded by him and if it appears
from the reasons that he had exercised a judicial mind in not awarding the
sentence of death. [612 F-613B].
Dalip Singh & Ors. v. State of Punjab
 S.C.R. 145, 156, explained.
Lal Singh v. Emperor, A.I.R. 1938 Alld. 625,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No.232 of 1967.
Appeal by special leave from the judgment and
order dated August 30, 1967 of the Assam and Nagaland High, Court in Criminal
Appeal No. 115 of 1964.
K. Rajendra Chaudhuri, for the appellants,
Naunit Lal, for the respondent, 611 The Judgment of the Court was delivered by
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 I 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 ear-rings, 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
s. 396, I.P.C., that court sentenced each of these appellants to imprisonment
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 ",as 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 in order dated 8th December, 1967, this
Court -ranted 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
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 and
Others v. State of Punjab (1), 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 be exercised and only for the strongest possible
reasons. It is not enough for an appellate court to say, or think, that if left
to itself it would have awarded the greater penalty because the discretion does
not belong to the appellate court but to the trial Judge and the only ground on
which an appellate court can interfere is that the discretion has been
improperly exercised, as for example, where no reasons are given and none can
be inferred from the circumstances of the case, or where the facts are so gross
that no normal judicial mind would have awarded the lesser penalty." It
appears to us, however, that, in the present case, this principle is of no
assistance to the appellants for challenging the step taken by the High Court.
This Court cautioned the appellate court against interfering if the discretion
of the trying Judge is exercised for reasons recorded by him and if it appears
from the reasons that he had exercised a judicial mind in not awarding the
sentence of death. In the present case, as mentioned by the High Court and as
is apparent from the judgment of the Court of Session, the -trial court awarded
the sentence of imprisonment for life without giving any reasons at all for
adopting that course. It is true that the appellants were not convicted in the
present case for the offence of murder simpliciter under section 302, I.P.C.;
but that, in our opinion, is immaterial. The conviction of the appellants under
s' 396, I.P.C., was not based on constructive liability as members of the gang
of dacoits. There was clear finding by the (1)  S.C.R. 145 at p. 156.
613 Court of Session which has been upheld by
the High Court that each of these appellants committed a cold-blooded murder by
shooting two inmates of the house simply with the object of facilitating
commission of dacoity by them. Those persons were shot and killed even though
they had not even tried to put up any resistance. The offence under s. 396,
I.P.C., was therefore, no less heinous than an offence under s. 302, I.P.C. In
these circumstances, when the Court of Session gave no reason at all for not
awarding the sentence of death and for sentencing them to imprisonment for life
only, it cannot be held that the High Court was not justified in interfering
with that order.
Learned counsel in this connection referred
us to a decision of a Division Bench of the Allahabad High Court in Lal Singh
v. Emperor(1), where it was held :
"We do not consider that as a general
rule a sentence of death should necessarily follow a conviction under s. 396,
I.P.C., and this Section differs from s. 302, I.P.C., in that respect. The rule
is under s. 302, that a sentence of death should follow unless reasons are
shown for giving a lesser sentence. No such rule applies to s. 396,
I.P.C." Again, we do not think that the learned Judges of the Allahabad
High Court intended to lay down that, even in cases where a person is convicted
for the offence under s. 396, I.P.C., and there is clear evidence that he
himself had committed a cold-blooded murder in committing the dacoity, a
sentence of death should not follow. Clearly, the view expressed was meant to
apply to those cases where there could be no definite finding as to which
person committed the murder and all the members of the gang are held
constructively guilty of the offence punishable under s. 396, I.P.C. A principle
enunciated for such a situation cannot be applied to a case where there is
direct evidence that a particular accused committed the murder himself, as is
the finding in the present case. In these circumstances, the order made by the
High Court must be held to be justified and the appeal is dismissed.
G.C. Appeal dismissed.
(1) A.I.R. 1938 Alld. 625.