Vivian Rodrick Vs. State of West
Bengal  INSC 33 (27 January 1971)
SIKRI, S.M. (CJ) SIKRI, S.M. (CJ) REDDY, P.
JAGANMOHAN DUA, I.D.
CITATION: 1971 AIR 1584 1971 SCR (3) 546 1971
SCC (1) 468
R 1974 SC1039 (6) RF 1977 SC2096 (22) E&D
1989 SC1335 (60)
Criminal Law-Sentence of death-Inordinate
delay in disposing of appeal by High Court-If ground for awarding lesser
The accused was committed to trial in July
1963 and was convicted and sentenced to death on September 4, 1964. The appeal
to the High Court under s. 411A, Cr. P.C., was finally dismissed on February 6,
1970. The High Court left it to the State Government whether it should reduce
the sentence on account of inordinate delay.
In appeal to this Court on the question of
HELD : Section 302, I.P.C., prescribes two
alternate sentences, namely, death sentence or imprisonment for life.
When there has been inordinate delay in the
disposal of the appeal by the High Court, it is a relevant factor for the High
Court to take into consideration for imposing the lesser sentence. [549 A-B] In
the present case, the appellant has been for 6 years under the fear of sentence
of death, which must have caused him unimaginable mental agony. In view of the
excessive delay it is a fit case for awarding the lesser sentence instead of
leaving it to the Government to decide the matter on a mercy petition. [549
B-D] Nawab Singh v. State of U.P., A.I.R. 1954 S.C. 278, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 137 of 1970.
Appeal by special leave from the judgment and
order dated February 6, 1970 of the Calcutta High Court in Criminal Appeal No.
5 of 1964.
O. P. Rana, for the appellant.
S. P. Mitra and Sukumar Basu, for the
The Judgment of the Court was delivered by
Sikri, C.J. 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 :
547 (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'Rozaric 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 S. 302 read with S. 149, and also under s. 148, I.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 s. 302,
I.P.C., and sentenced him to death. At the trial the appellant was also
convicted for offences under s. 148, I.P.C., and s. 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
The appellant filed a petition of appeal
under s. 411A, Cr. 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." The appellant sought leave to appeal to this Court against the
judgment of the High Court on October 21, 1967, and the same 548 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. Ap. 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." 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 five years in executing the death sentence that was not by its,--If
sufficient ground for commuting the death sentence. The High Court referred to
Nawab Singh v. The State of Uttar Pradesh(") and Piare Dusadh v. King
EMperor(2). As the High Court did not find any extenuating circumstances
whatsoever that 'would .justify its taking a lenient view in the matter, it
left to the State Government to take a decision as to whether it should, on
account of inordinate delay in executing the sentence, exercise its powers
under S. 402, Cr. P.C.
The learned counsel for the appellant
contends that the matter should not have been left to the State Government.
In Nawab Singh v. The State of Uttar Pradesh
("), which has been referred to by the High Court in its judgment dated
February 6, 1970, it is observed "It is true that in proper cases an
inordinate delay in the execution of the death sentence may be regarded as a
ground for commuting it, but we desire to point out that this is no rule of law
and is a matter primarily for consideration of the local Government. If the
Court has to exercise a discretion in such matter, the other facts of such case
would have to be taken into consideration. In the case before us, we find that
the murder was a cruel and deliberate one and there was no extenuate in
circumstance whatsoever which would justify using ordering a commutation of the
death sentence." (1) A.I.R. 1954 S.C. 278.
(2)  F.C.R. 61 549 It seems to us that
the extremely excessive delay in the disposal of the case of the appellant
would by itself be sufficient for imposing a lesser sentence of imprisonment
for life under s. 302. Section 302, I.P.C., prescribes two alternate sentences,
namely, death sentence or imprisonment for life, and when there has been
inordinate delay in the disposal of the appeal by the High Court it seems to us
that it is a relevant factor for the High Court to take into consideration for
imposing the lesser sentence. In this particular case, as pointed out above,
the appellant was committed to trial by the Presidency Magistrate as early as
July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964.
It is now January 1971, and the appellant has been' for more than six years
under the fear of sentence of death. This must have caused him unimaginable
mental agony. In our opinion it would be inhuman to make him suffer till the
Government decides the matter on a mercy petition. We consider that this is now
a fit case for awarding the sentence of imprisonment for life.
Accordingly we accept the appeal, set aside
the order of the High Court awarding death sentence and award a sentence of
imprisonment for life. The sentences under s. 148, I.P.C., and S. 5 of the
Explosive Substances Act and under s. 302, I.P.C., shall run concurrently.
V.P.S. Sentence modified.