Holding

The Supreme Court acquitted accused A2, A3, A6 and A10 on the ground of reasonable doubt and commuted the death sentence of accused No. 11 to life imprisonment, while upholding the convictions and sentences of the remaining accused.

Summary

The Supreme Court examined the murder‑conspiracy case of 20 September 1984 in which twelve persons were tried for offences including murder, unlawful assembly and illegal possession of arms. The trial court convicted all accused and sentenced them to life imprisonment; the Gujarat High Court upheld the convictions, acquitted one accused, and enhanced the sentence of accused No. 11 (Jashuba) to death. On appeal, the Court held that four accused (A2, A3, A6 and A10) could not be linked to the offence as they were not named in the FIR and no witness identified a specific role, so they were acquitted and, despite not filing an appeal, A10 also received the benefit of the judgment. Regarding the death sentence, the Court observed that the trial judge had given detailed reasons for life imprisonment and the High Court could not overturn that merely by a different view; consequently the death sentence of A11 was commuted to life imprisonment. The convictions and sentences of the remaining accused were left unchanged. The judgment reiterated the principles governing enhancement of punishment under Section 354(3) CrPC and the ‘rarest of rare’ doctrine from Bachan Singh.

Issues considered

Whether the prosecution proved the participation of accused A2, A3, A6 and A10 beyond reasonable doubt despite their omission from the FIR and lack of specific witness identification.
Whether an accused who did not file an appeal can be denied the benefit of a judgment that acquits him.
Whether the Gujarat High Court was justified in enhancing the life imprisonment of accused No. 11 to death when the trial court had provided elaborate reasons for life imprisonment.
The applicability of Section 354(3) of the Criminal Procedure Code requiring special reasons for death sentences and the ‘rarest of rare’ test from Bachan Singh.
The scope of appellate power to interfere with sentencing decisions under the principles laid down in Dalip Singh’s case.

Legislation cited

Arms Act, 1955s. 25A
Code of Criminal Procedure, 1973s. 354(3)
Indian Penal Code, 1860s. 120-B, s. 143, s. 148, s. 149, s. 302, s. 307, s. 324

Subjects

murderconspiracyunlawful assemblydeath penaltysentencingbenefit of doubtappellate reviewSection 354(3) CrPClife imprisonmentcapital punishmentconviction acquittalenhancement of sentence

Judgment

... JASHUBA BHARATSINH GOHIL AND ORS .
v.
A

STATE OF GUJARAT

APRIL 13, 1994

[K. JAYACHANDRA REDDY AND DR. AS. ANAND, JJ.] B

i' Criminal Procedure Cnde 1973-Scction 354(3{-Dcath sentence-
Where trial court has given elaborate reasons for awarding life imprisonment,
held, the High Court was not justified in enhancing punishment to death
sentence only because it looked at those reasons differently. c
Indian penal Code 186(}-Sections 302, 3021149, 307/149.

Four accused not named in FIR, and none of the prosecution .witnesses
ascribing any particular role to them-Held, entitled to be given benefit of
doubt and acquitted-Conviction of seven other accused maintained. D

Practice and procedure-One accused not filing appeal-lnfinnities
attaching to the case of three other accused applying to him a/so-Held,
cannot be denied benefit of judgment.

Twelve accused were tried by the Sessions Court for offences punish· E
able under Section 120-B read with Sections 302, 307, 148 IPC read with
Section 149, Section 143 and in the alternative under Sections 302, 307/34
!PC and Section 25A of the Arms Act. Ten persons were killed in the
incident which took place on 20th September 1984, and four persons were
injured. F
l The prosecution's case in brief was that there was prior enmity
between the accused - party and the complainant-party and that the
former hatched a conspiracy to wreak vegeance by assaulting the latter. It

- was alleged that when the complainant party was returning from a con-
dolence function, the accused party which had formed an unlawful assemb-
ly, lay in wait armed with deadly weapons like gun, spear, axe etc. When
G

the tractor and trailer carrying the complainant party reached the place
where the accused were hiding, A-11 fired from his gun to deflate the tyre
of the tractor and brought it to a halt. The remaining accused came out
from hiding and began assaulting the persons in the tractor. Gunshots H
471
472 SUPREME COURT REPORTS [1994] 3 S.C.R.

A were also fired and persons who sought to escape were chased and beaten.
After returning from the village the accused continued to fire shots.

The Trial Court found all the accused guilty under Section 302 and
section 302 read with section 149 IPC, and of lesser offences. All the
accused were sentenced to life imprisonment.
B
All the accused filed an appeal in the High Court. The State filed an
appeal seeking enhancement of the sentence of life-imprisonment to death.
The High Court confirmed the conviction of all the accused except A 4 who ~
was acquitted. It partly allowed the appeal of the state and enhanced the
C sentence oflife imprisonment on A 11 to a sentence of death. The sentence
of life imprisonment on the other accused was maintained.

All the convicted persons except A 10 appealed to this Court by
special leave.

D Acquitting A2, A3, A6 and AlO by giving the benefit of doubt, and
redncing the death sentence on All to life imprisonment, this court

HELD : 1. The prosecution evidence is clear, cogent and specific in
so far as the involvement of accused other than A2, A3, A6 and AlO are
concerned. The appreciation of evidence by the courts below bas impressed
E
us, and we agree with the reasoning and conclusions arrived at by the
courts below as regards their guilt. The eye-witness account is specific.
Despite lengthy cross-examination of the eye-witnesses notbing has been
brought out from the record to create any doubt about the credit wortbi·
ness of the testimony of any of the prosecution witnesses. The recoveries
F made from them pursuant to the disclosure statements which have not
been doubted, coupled with the medical evidence, show that the prosecu-
tion has established its case against them beyond every reasonable donbt.
[479-B-C, 481-B]
2. It is not not disputed that the complainant knew A2, A3, A6 and
G AlO as well as he knew the other accused persons. The complainant being
an injured witness is a stamped witness and it is significant that he did
not name Al, A3, A6 and AlO as members of the accused party in the first
information reprot lodged soon after the occurrence. In bis statement
recorded by PW-11 the Executive Magistrate also, the comlainant did not
H name A2, A3, A6 and AlO as having taken any part in the assault. Thongh
J.B. GOHIL v. STATE OF GUJARAT 473

In the said statement it was mentioned that there were four other. persons, A
it is difficult to understand as to what prevented him from giving the
names of A2, A3, A6 and AlO since the names of all the other accused
persons wete mentioned in the report. At the trial of course an effort was
made to implicate these four accused also, but then the court cannot lose
sight of the fact that the tendency to rope in some innocent persons along B
with the guilty ones is not new. It appears that dne to the enmity which is
admitted bel\''c<n the parties and the past hostilities, the names of A2, A3,
A6 and AlO were sought to be introduced in the prosecution case at a later
stage, after thoughtful deliberations and the case was then developed to
implicate them also. None of the witnesses produced by the prosecution
has been able to ascribe any particular role to A2, A3, A6 and AlO. The c
mention of "four others" by the complainant shows that he had designedly
left a margin to add to the number of the accused later on after delibera·
tions and consultations. The prosecution has failed to prove the case
against A2, A3, A6 and AlO beyond reasonable doubt and the possibility
that they have been implicated with other accused persons on account of D
their relationship and association with the other accused persons cannot
be ruled out. A2, A3, A6 and AlO therefore deserve to be given the benefit
of doubt and acquitted. [479-F-H; 480-E-F]

3. Though AlO has not tiled any appeal in the court, since the E
infirmities which attach to the cases of A2, A3 and A6 are the same which
attach to his case also, he cannot be denied the benefit of the court's
judgment only because he has not tiled any appeal. [480-G]

4. The principles laid down by this Court regarding the enhancement F
of sentence and also about the award of sentence of death are now well
setting. Section 354(3) of the Code of Criminal Procedure, 1973, as
amended, makes if obligatory in cases of conviction for offences punishable
with death or with imprisonment for life to assign in support of the
sentence awarded to the convict and further ordains that ill case the Judge
awards death penalty, "special reasons" for such sentence shall be stated G
in the judb'1tlent. Thus the Judge is under a legal obligation to explain his
choice of the sentence. The legislature in its supreme wisdom thought that
in some "rare cases" for "special reason" to be recorded it will be necessary
to impose the extreme penalty of death to deter others and to protect the
society and in a given case even the sovereignty and security of the state H
474 SUPREME COURT REPORTS [1994] 3 S.C.R.

A or country. It, however, left the choice of sentence to the judiciary with the ~
rider that the court may iimpose the extreme punishment of death for
"special reasons". The sentencing court has, therefore, to approach the
question seriously and make an endavour to see that all the relevant facts
and circumstances bearing the question of sentence are brought on record.
It is only after giving due weight to the mitigating as well as the aggravat-
B
ing circumstances, that it must proceed to impose the appropriate sen-
tence. [482-D, H, 483-A-C]

Bachan Singh v. State of Punjab, [1983] 1 SCR 145, referred to.

C 5. In the instant cas·e, the Trial Court dealt with the question of
sentence elaborately from (>aragraphs ·83 to 92 of the jndgment and after
referring to statutory provfsions and taking note of the legislative change
which has since been brou1;ht about by section 354(3) Cr. P.C. and some
judicial pronouncements, Jame to the conclusion that the the sentence of
D imprisonment for life would meet the ends of justice. Therefore, the Trial
Court did not merely, by a cursory order, impose the sentence of life
.. imprisonment and used its discretion not to award the capital sentence of
death for detailed reasons recorded by it. The reasons given by the Trial
Court cannot be said to be wholly unsatisfactory or irrelevant, much less
perverse. The High Court differed with the reasoning of the Trial Court
E and almost 5 years after tt·1e judgment had been pronounced by the Trial
Court, proceeded to enhan•,oe the sentence of A 11 from life imprisonment
to that of death sentence..The High Court also gave its own reasons in
support of its view on the <1uestion of sentence. The High Court, however,
did not opine that the reas.ons given by the Sessions Judge were perverse
F or so unreasonable as no court could have advanced the same. It took a
different view of the legisla;tive policy as also of the law laid down by this
Court and referred to somr; other judgments of this Court also in support
of its "reasons" to impose the sentence of death. The view taken by the High
Court, it can legitimately be said, is also a possible view. [483-D-G]

G 6. Prior to the incorp·oration of Section 354(3) Cr. P.C. in 1973 when
the imposition of death sentence was almost the rule and imposition of life
imprisonment required th;e trying Judge to give reasons, this Court in
Dalip Singh's case [1954] SCR 145 held that the discretion on the question
of sentence was that of the: trying Judge, and if he gave reasons on which
H a judicial mind could properly found, an appellate court should not
J.B.GOHIL v. STATEOFGUJARAT[DR.ANAND,J.] 475

interfere. [484-B, DJ A
6.2. In view of the legislative amendment noticed above the present
case stands on a better footing than Dalip Singh 's case. Keeping in view
the guidelines in Dalip Singh's case in the peculiar facts and circumstances
of the present case, when the occurrence took place almost 10 years ago
and for the last more than 6 years the spectre of death has been hanging B
over the head of All, the High Court should not have enhanced the
!1" sentence for exercising its discretion in choosing the sentence the trial
court had given elaborate reasons which it cannot be said no judicial mind
can advance. Only because the High Court looked at those reasons dif-
ferently, it did not justify the enhancement of sentence to death sentence. C
[484-F-H, 485-A)
Dalip Singh v. State of Punjab, [1954] SCR 145, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 277-279 of 1992.
D
From the Judgment and Order dated 6.3.92 of the Gujarat High
Court in Crl. A Nos. 88, 89 & 58 of 1988.

T.U. Mehta, N.N. Keshwani, Ashok D. Shah and R.N. Keshwani for
the Appellants.
E
Maganbhai Barot S.R. Divatis, H.M. Gandhi, S.C. Patel and Anip
Sachthey for the Respondents. ·

E.C. Agrawala for the Complainant.

The Judgment of the Court was delivered by F
.,.
)
DR. ANAND, J. Tl;Velve persons namely, Bharatsinh Pathuba Gohil,
Dhruvansinh Bharatsinh Gohil. Antruddsinh Bharatsinh Gohil, Jodha
Khoda Rabari, Bhikhubha Shivubha Gohil, Bhupathsinh Bahadursinh
Gohil, Kuvarisinh Ajitsinh Gohil, Nirubha, Ajitsinh, Baldevsinh Alias
Babluha Sajubha Gohil, Jasubha Bharatsinh Gohil and Mohansinh Alias G
Nathabai Ranchhodbhai Thaker Alias Selanki Alias Parma were tried for
offences punishable under Section 120-B read with Section 302, 307, 148
IPC read with Section 149, Section 143 and in the alternative under Section
302, 307/34 !PC and section 25A of the Arms Act by the learned Sessions
Judge, Bhavnagar, (For the sake of convenience and brevity we shall refer H
476 SUPREME COURT REPORTS (1994] 3 S.C.R.

A to the No. of the accused. Al to Al2, in the same order in which their
'lames appear in the Trial Court).

The Trial Court found that all the accused, as members of an
unlawful assembly, under the leadership of accused No. 11 responsible for
the death of deceased Diwaliben. It also held all the accused as members
B
of unlawful assembly, responsible for the death of Jaram Bhagvan and
Odhavji Bhagvan. In the opinion of the Trial Court, Accused No. 11 was
also responsible for the death of deceased Purshottam Jaga and Popat
Lakha. Further, accused No:;. 1, 5, 7, 8, 9, 10, 11, and 12 with active part
played by accused Nos. 3, 10, 11 and 12 were held responsible for the death
C of Gordhan Lakha. Accused Nos. 1, 2, 5, 7, 8, 9, 10, 11 and 12 with active
part played by accused Nos. 5, 8, 11 and 12 were also held responsible for
the death of deceased Babu Bacher. The learned Sessions Judge also· held
guilty all the members of unlawful assembly, with an active part played by
Accused No. 11, for the death of Madhu Khoda and Nagji Khoda. With
D regard to injuries caused to Pragji Mavji, all the accused were held guilty
for an offence under Section 324 !PC. The Trial Court observed that with
regard to the injury caused to Madhu Naran all the accused were guilty of
>·
the offence under Section 307/149 !PC and with regard to injury caused '
to Purshottam Mulji all the accused were held responsible for the offence
under Section 307/149 !PC. The learned Sessions Judge also found that
E Dhanji Bhagvan had been caused injuries by all the accused and therefore
they were guilty of an offence under Section 307/149 !PC. They were all.
sentenced to undergo life imprisonment for the offence under Section 302
!PC and 302/149 !PC. No separate sentence was, however, imposed for the
offence undet Section 120-B !PC. Al, A2, A5, AS, A9, All and Al2 were
F also sentenced to suffer rigorous imprisonment of 3 years and to pay a fine
of Rs. 1000 each or in defaiolt to further undergo rigorous imprisonment
for six months for the offence under Section 25A of the Indian Arms Act.
All the substantive sentences were directed to run concurrently. The
accused filed an appeal in the High Court and the State also filed an appeal
seeing enhancement of the sentence of life imprisonment to death sen-
G tence, since the accused had been found guilty of committing as many as
10 murders. The High Court acquitted A4. Accepting the State appeal in
part, it awarded the sentence of death to All, Jasbubha only. The High
Court cenfirmed the conviction and sentence of life imprisonment on rest
of the accused. Conviction and sentence for other offences was also main-
H . tained. The accused have, by special leave, filed this appeal challenging
J.B. GOHIL v. STATE OF GUJARAT (DR. ANAND. J.] 477
.>~
their convictions and sentences. There is, however, no appeal fil~d on A
behalf of AlO, who has since been absconding.

The prosecution case is as follows :

Village Mangadh and Chomaland are separated only by a boundary
B
of earth embankment. In 1980 some Patels of village Mangadh committed
the murder of 3 Darbar namely, Bhimdevsinh Ajitsinh, Son of A9, Khen-
!' ..
garbha Chandubha and Sajubha Patubha, brothe" of Al. 9 Patels of village
Mangadh were tried for the said offence but acquitted. Enemity and
hostilities between the two factions continued.
c
On 20th of September, 1984 the appellants herein with a view to
wrack the vengeance of the said incident hatched a conspiracy to assualt
the complainant party. It so happened that Gomtiben, the aunt of the
complainant, died in village Manvilas and. the news of her death was
received at village Mangadh also where the parents of the deceased Gorn- D
tiben resided. As is customary, the villagers of Mangadh decided that they
would take bath at the well situated outside the village and thereafter go
to Manvilas the next day to offer condolences. One tractor alongwith a
trailer was arranged for transportation of the villagers on 20th of Septem-
ber, 1984. 12 males alongwith some 12-13 females went in the tractor and
trailer to village Manvilas to offer condolences. Taking advantage of this E
situation, appellants herein, alongwith AlO and the acquitted Accused A4,
formed an unlawful assembly and lay in wait, armed with deadly weapons
like gun, spear, axe and dhariya, for the tractor and the trailer to return
from Manvilas. They concealed themselves behind the hedge separating the
row near the Vadi of Kali Devji situated on the path-way between Manvilas F
and Mangadh. As soon as the tractor came on the road near the Vadi, All
came on the road and fired from his gun thereby deflating the tyre of the
tractor and brought the same to a halt. In the meanwhile, the remaining
accused parsons also came out from behind the hedge and assaulted those
who were sitting in the tractor. Gun shots were fired and some of the
persons sitting in the tractor and trailer were injured. When some of the G
villagers tried to run away, after jumping from the tractor, they were chased
and beaten up by members belonging to the accused party. As a result of
the gun shots a number of persons received injuries and one of them,
Diwaliben, died in the tractor. The accused then returned to the village
and went towards southern outskirt of the village, where again shots were H
~\

478 SUPREME COURT REPORTS (1994) 3 S.C.R.

A fired by them at the persons working in different fields as well as on those
who were returning on their carts from the fields. A number of persons
were killed. Pragji Mavji, Purshottam and Dhanji received gun shot in-
juries. Odhavji Bhagvan and Jaram Bhagvan were chased and killed by the
accused party. Ganesh who was also injured by the gun shot lay there in
an injured condition but died on the way to the hospital. The accused also
B fired at the residential place of Purshottam when he was unloading stones
from the cart and he also died on the spot. Popat Lakha, Goverdhan Lakha
and Babu Bacher were shot dead by the accused party while they were
;. ,,
returning from their fields. Nagji Khoda and his associate Madhu Khoda
were mjured by gun shots and out of them Nagji died on the spot while
C Madhu Khoda succumbed to his injuries in the hospital. Madhu Naran
succeeded in running away after receiving some injuries during the incident
and got medical aid in the hospital at Gariadhar. While he was in the
hospital, some of the injured persons were brought to the same hospital
while some others had been sent to Bhavnagar Government Hospital and
D thereafter to Ahmedabad for treatment. Madhu Naran filed the complaint
on the same day which forms the basis of the first information report and
the investigation was taken in hand.
\
The prosecution led evidence in the case to show that a short time
prior to the incident in question an assault had taken place on Purshottam
E Pragji in which AS, All and A12 out of the present appellants alongwith
the son of A9 and the brother of A 7 were tried and convicted. Their appeal
was pending against the conviction and sentence in the High Court, when
the occurrence in this case took place on 20th September, 1984.

F That all the deceased in the case died as a result of the assault on
them by fire arms and other weapons has not been disputed before us and
we are, therefore, not obliged to refer either to the post-mortem reports,
medical evidence or the other evidence including the evidence of the expert
with regard to the use of fire arms. Learned counsel for the appellant, Shri
Mehta however submitted that the evidence on the record does not prove
G the case against A2, A3, A6 and AlO beyond a reasonable doubt and that
the sentence of death awarded to All was also not justified since the Trial
Court had sentenced him to suffer imprisonment for life, keeping in view
all the facts and circumstances of the case. Learned counsel, however, was
unable to point out any material on the record from which the substratum
H of the prosecution case could be doubted insofar as the complicity of the
J.B.GOH!L v. STATEOFGUJARAT[DR.ANAND,l.] 479

remaining accused persons are concerned. He drew orir attention to some A
parts of the evidence led by the prosecution to draw a distinction between
the cases of A2, A3, A8 and AlO on the one hand and the remaining
accused on the other. The prosecution evidence, in our opinion, is clear,
cogent and specific insofar as the involvement of accused other than A2,
A3, A6 and AlO are concerned, whose cases we shall deal with a little later.
Learned counsel for the appellants has been unable to point out any cogent
B
reasons for not agreeing with the Trial Court and the High Court as
regards the guilt of the remaining accused. It has, however, been argued
that the enhancement of sentence to death in the case of All was not
jristified. The appreciation of evidence by the courts below has impressed
us and we agree with the reasoning and the conclusions arrived al by both c
the courts below as regards the guilt of the appellants other than A2, A3,
A6 and AlO and find that the same has been successfully brought home.
However, before considering whether the High Court was justified in
enhancing the sentence of life imprisonment to death in the case of All,
Jashubha, we propose to deal with the case of A2, A3, A6, and 10.
D
The learned Sessions Judge as well as the High Court rightly treated
the cnmplaint made by Pragji at the police chowky, as the first information
report in the case, on the basis of which investigation commenced and a
copy of which had also been for warded to the Court. A perusal of the said
report shows that accused No. Al, AS, A7, AS, A9 All, and A12 have E
been specifically named as the assailants. It is also specifically stated in the
said report that out of them four of the accused were armed with fire arms
and that the incident took place between 9.30 a.m. and 10.00 a.m. It is
nobody's case and indeed in farness to learned counsel for the State, it
must be recorded that he also did not dispute that the complainant knew F
A2, A3, A6 arid AlO, as well as he knew the other accused persons. The
complainant, Pragji PW16 being an injured witness himself is a stamped
./ witness and it is significant that he did not name A2, A3, A6 and AlO as
members of the accused party i11 the first information report, lodged soon
after the occurrence. It is also relevant in this connection to bear in mind
that in his statement recorded by PWll, Shri Mehta, Executive Magistrate, G
Pragji PW16 again did not name A2, A3, A6 and AlO as having taken any
part in the assault. Of course, in the statement the complainant had stated
that there were four other persons also but since, the names of all the other
accused were mentioned in the report, one fails to understand as to what
prevented the names of A2, A3, A6 and AlO to be also given by the H
~
480 SUPREME COURT REPORTS [1994] 3 S.C.R.

A complainant in his report. At the trial, of course, an effort was made to
implicate these four accused also but then we canoot loose sight of the fact
that the tendency to rope in some innocent persons alongwieh the guilty
ones is not new. It appears that due to the enmity, which is admitted
between the parties and the past hostilities, the names of Al, A3, A6 and
AlO were sought to be introduced in the prosecution case at a later stage,
B after thoughtful deliberations, and the case was then developed so as to
implicate them also. None of the witnesses produced by the prosecution
has been able to ascribe any particular role to A2, A3, A6 and AlO. The
mention of the expression "4 other" by the complainant shows that he had
designedly left a margin to add to the number of the accused later on after >-,
c deliberations and consultations. The evidence of Pragji as well as the other
prosecution witnesses, particularly Madhu Naran PW17, shows that the
prosecution has made a concerted effort to improve upon its case and •
implicate A2, A3, A6 and AlO alongwith the other accused persons later
on. In this connection, it requires to be noticed that a careful analysis of
the testimony of the 3rd eye witness, Purshottam Mulji PW18, also creates
D
an impression on our minds that while dealing with the two parts of the
incident, one at the tractor-trolley and the other in the village, the role
played by A2, A3, A6 and AlO has not been clearly brought out by him
either. Our careful appraisal and independent analysis of the evidence on
the record, coupled with the glaring omission in the first information report >
E and the statement of Pragji recorded by the Executive Magistrate PW11,
for which omission the prosecution explanation deser~es a mention only to
'
be rejected, has created an impression on our minds that the prosecution
has failed to prove the case against A2, A3, A6 and AlO beyond a
reasonable doubt and that the possibility that they have been implicated
alongwith other accused persons on account of their relationship an as-
F
sociation with the other accused persons cannot be ruled out. The Trial
Court as well as the High Court, in our view, fell in error in not distin-
guishing their cases and in convicting and sentencing them also alongwith
the other accused persons. These four appellants namely, A2, A3, A6 and
..
AlO, therefore, deserve to be given the benefit of the doubt and acquitted.
'
G We may hasten to add that AlO has not filed any appeal in this Court but
since the infirmities which attach to the cases of A2, A3 and A6 are the
same which attach to his case also, we cannot deny the benefit of our
judgment to him also only because he has not filed any appeal against his
conviction and sentence before us. We give him the benefit of the doubt
H
...
J.B. GOHIL v. STATEOFGUJARATIDR.ANAND,J.] 481

also and set aside his conviction and sentence in the same manner as we A
set aside the conviction and sentence of AZ, A3, and A6 by giving them
the benefit of the doubt.

So far as the remaining accused are concerned, the prosecution
evidence is clear and cogent. The eye witness account is specific. Despite B
lengthy cross-examination of the eye witnesses nothing has been brought
out on the record to create any doubt about the creditworthiness of the
testimony of any of the prosecution witnesses. The recoveries made from
them, pursuant to the disclosure statements, which have not been doubted
before us coupled with the medical evidence shows that the prosecution
has established its case against them beyond every reasonable doubt. We C
agree with the reasoning and findings of the Trial Court as well as the High
Court and uphold the conviction of Al, A5, A7, A8, A9, All and Al2
insofar as the offences under section 302/149 !PC and other offences are
concerned. Since, the High Court itself did not grant the appeal of the State
for enhancing the sentence of life imprisonment in the case of AS and Al2, D
we need not detain ourselves to deal with their case and it would suffice
to record that we agree with the High Court that the sentence of life
imprisonment on AS and Al2, did not call for any enhancement.

We shall now come to the case of All, who has been sentenced to
death by the High Court by partially accepting the State's appeal. E

Indeed 10 murders had taken place in broad daylight. The con-
science of the State appears to have been shaken when it found that the
Trial Court had sentenced all the accused only to life imprisonment. The
State Considering the gravity of the crime in which 10 innocent persons F
had lost their lives approached the High Court for enhancing the sentence
of A8, All and Al2 and the High Court enhanced it in the case All only.
As already noticed, it was All, Jashubha, who first emerged on the scene
and fired from his gun and deflated the tyre of the tractor. After the tractor
came to a halt, it was he again who fired the seconds hot on the passengers
which caused injuries to some others including Diwaliben who died. G
Jashubha All, according to the prosecution, fired yet another shot from
his gun which hit Dhanji Bhagvan. The other shots fired by him could not
be linked specifically to the injuries to any of the deceased or injured. The
manner in which the murders were committed indeed exposes its gravity.
Undoubtedly, the assault was made by the accused party led by Ail on H
482 SUPREME COURT REPORTS [1994] 3 S.C.R.

A un-armed and innocent person, who wore returning after offering con-
dolences on the death of Gomtiben. That there was previous enmity
between the parties certainly did not justify the manner in which All and
his companions acted and went on a killing spree. The Trial Court which
had the benefit of examining the demeanour of the witnesses chose not to
inflict the extreme penalty of death on any of the accused persons and
B instead sentenced all the accused to life imprisonment by its judgment
dated December 14, 1987. The High Court enhanced the sentence of All
vide its judgment dated 6th March, 1992.

Learned counsel for the State has pleaded for upholding the sen-
C tence of death on All while Mr. Mehta, learned Sr. Advocate appearing
for the appellant Jashubha All has pleaded that the sentence of death be
not confirmed on him.

It is needless for us to go into the principles laid down by this Court
regarding the enhancement of sentence as also about the award of sentence
D of death, as the law on both these subjects is now well settled. There is
undoubtedly power of enhancement available with the High Court which,
however, has to be sparingly exercised. No hard and fast rule can be laid
down as to in which case the High Court may enhance the sentence from
life imprisonment to death. Each case depends on its own facts ad on a
E variety of factors. The courts are constantly faced with the situation where
they are required to answer to new challenges and muuld the sentencing
system to meet those challenges. Protection of society and deterring the
criminal is the avowed object of law and that is required to be achieved by
imposing appropriate sentence. The change in the legislative intendment
relating to award of capital punishment notwithstanding, the opposition by
F the protagonist of abolition of capital sentence, shows that it is expected
of the courts to so operate the sentencing system as to impose such
sentence which reflects the social consience of the society. The sentencing
process has to be stern where it should be. '
G There are however certain basic principles which this Court has laid
down in Bachan Singh's case [1980] 2 SCC, 684 for imposition of death
sentence in nrarest of rare cases and we need not repeat those principles.
11

Section 354 (3) of the Code of Criminal Procedure, 1973, as
amended, makes it obligatory in cases of conviction for offences punihsable
H with death or with imprisonment for life to assign reasons in support of the
J.B. GOHIL v. STATEOFGUJARAT[DR.ANAND,J.J 483

sentence awarded to the convict and further ordains that in case the Judge A
awards death penality, 11 special reasons 11 for such sentence shall be stated
in the judgment. Thus, the Judge is under a legal obligation to explain !)is
choice of the sentence. The Legislature in its supreme wisdom thought that
in some 1'rare cases 11 for 11 special reasonsn to be recorded it will be necessary
to impose the extreme penalty of death to deter others and to protect the
society and in a given case even the sovereignty and security of the State
B
or country. It, however, left the choice of sentence to the judiciary with the
rider that the court may impose the extreme punishment of death for
11
special reasonsn. The sentencing court has, therefore, to approach the
question seriously and make an endeavour to see that all the relevant facts
and circumstances bearing on the question of sentence are brought on c
record. It is only after giving due weight to the mitigating as well as the
aggravating circumstances, that it must proceed to impose the appropriate
sentence.

In the instant case, the Trial Court dealt with the question of sen- D
tence elaborately from paragraph 83 to 92 of the judgment and after
referring to statutory provisions and taking note of the legislative change
which has since been brought about by Section 354 (3) Cr. P.C. and some
judicial pronouncements, came to the conclusion that the sentence of
imprisonment for life would meet the ends of justice. Therefore, the Trial
Court did not merely, by a cursory order, impose the sentence of life E
imprisonment and used its discretion not to award the capital sentence of
death for detailed reasons recorded by it. The reasons given by the Trial
Court cannot be said to i>e wholly unsal.isfactory or irrelevant much less
pe1verse. The High Court differed \Vith the reasoning of the Trial Court
and almost 5 years afler the judgment had been pronounced by the Trial
F
Court proceeded to enhance the sentence of All from life imprisonment
to that of death sentence. The High Court also gave its own reasons in
support of its view on the question of 3cntencc. The High Court, however,
did not opine that the reasons given by the Sessions Judge were perverse
or so unreasonable as no Court could have advanced the same. It took a
different view of the legislative policy as also of the law laid down by this G
Court and_ referred to some other judgment of this Court also in support
of its "reasons" to impose the sentence of death. The view taken by the
High Court, it can legitimately be said is also a possible view.

We have given our anxious consideration to the reasons advanced by H
484 SUPREME COURT REPORTS [1994] 3 S.C.R.
__..
A th~ Trial Court for not choosing to impose the death sentence as also those
given by the High Court for enhancing the sentence of life imprisonment
to that of death on All, Jashubha.

Prior to the incorporation of Section 354(3) Cr. P.C. in 1973 when
the imposition of dea!h sentence was almost the rule and imposition of life
B imprisonment required the trying judge to give reasons, this Court was }-
faced with almost a similar situation as in the present case. In Dalip Singh's
v. State of Punjab, AIR (1953) SC 364, this Court dealt with the subject,
thus:

c "On the question of sentence, it would have been necessary for us
to interfere in any event because a question of principle is involved.
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
D
could properly 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
E 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
F mind would have awarded the lesser penalty." (Emphasis ours) ~

'
In view of the 1egis1ative amendment noticed above, the present case
stands on a better fooling than Dalip Singh's case (supra). Keeping in view
the guideline in Dalip Singh's case (supra), we are of the opinion that in
the peculiar facts and circumstances of this case, when the occurrence
G look place almost 10 years ago and for the last more than 6 years the
spectre of death has been hanging over the head of All, Jashubha, the
High Court should not have enhanced the sentence from life imprisonment
to death because for exercising its discretion in choosing the sentence the
trial court had given elaborate reasons which it cannot be said no judicial
H mind could advance. Only because the High Court looked at those reasons
J.B. GOHIL v. STATE OF GUJARAT [DR. ANAND, J.j 485

differently, in our opinion, it did noi justify the enhancement of sentence A
to death sentence. We, therefore, commute the sentence of death imposed
upon All by the High Court to that of imprisonment for life and restore
the sentence as was imposed by the Sessions Judge.

Thus, in view of the above discussion, the appeals of A2, A3, and A6
are allowed and their conviction and sentence are set aside. AlO shall also B
be entitled to ihe benefit given to A2, A3, and A6 and his conviction and
sentence are also set aside. The appeal of All is allowed to the extent that
while maintaining his conviction the sentence of death imposed upon him
is commuted to the sentence of life imprisonment. In all other respects his
appeal fails and is dismissed and his conviction and sentence for other
offences maintained. Appeals of the remaining accused Al, AS, A 7, AS,
c
A9 and Al2 are dismissed and their convictions and sentences are main-
tained.

A2, A3, A6 shall be set at liberty forthwith if not required in any
oiher case. D
R.R. Appeals of A2, A3, A6 & AlO are allowed.
Appeals of Al, AS, A7, AS, A9, & Al2 are dismissed.