Holding

The Supreme Court held that the High Court erred; there is no law mandating commutation after three years in a death‑cell, Section 377(3) does not apply to Article 136 appeals, and the death sentence is justified as a rarest‑of‑rare case.

Summary

The State of U.P. prosecuted Dharmendra Singh and Narendra for the pre‑meditated murder of five members of a complainant’s family, including children and an elderly man, after a personal grievance and an attempted molestation. The trial court convicted them under Section 302 IPC and sentenced them to death, calling the case "rarest of the rare". The Allahabad High Court upheld the conviction but commuted the death sentence to life imprisonment on the ground that the accused had been in a death‑cell for more than three years. The Supreme Court held that no statutory rule mandates commutation after three years, that Section 377(3) of the CrPC does not apply to appeals under Article 136, and that the brutality, motive and number of victims justified the death penalty. Consequently, the High Court’s order was set aside and the death sentence reinstated.

Issues considered

The High Court’s reasoning that a three‑year stay in a death‑cell warrants commutation of a death sentence.
Whether Section 377(3) of the Criminal Procedure Code applies to appeals filed under Article 136 of the Constitution.
Whether the facts constitute a 'rarest of the rare' case justifying capital punishment.
Whether an accused’s expectation of survival can be a mitigating factor in sentencing.
The scope of appellate discretion in interfering with a death‑sentence.

Legislation cited

Code of Criminal Procedure, 1973s. 354(3), s. 377(3), s. 386(c)(iii)
Constitution of Indias. Article 136
Indian Penal Code, 1860s. 302

Subjects

death penaltyrarest of the rarecommutationSection 377(3) CrPCArticle 136 Constitutionmurdersentencing discretionappeal

Judgment

A STATE OF U.P.
v.
DHARMENDRA SINGH AND ANR. ETC.

SEPTEMBER 21, 1999

B [SYED SHAH MOHAMMED QUADRI AND N. SANTOSH
HEGDE, JJ.]

Criminal Procedure Code, 1973 I Penal Code, 1860: Section 354(3) I
Section 302-Death Sentence-Murder of 5 persons (chi(dren and elder per-
. C sons) to wreak vengeanc~Attacked in the night while victims were as-
leep-Multiple injuries inflicted-Lower part of the girl's body denuded-Trial
Court convicted respondents for the offence of murder and sentenced them
to death holding it to be rarest of rare cas~In appeal and death sentence
reference, High Court confirmed conviction but commuted death sentence to
D life imprisonment in view of the fact of respondents /anguishing in death cell
for more than three years-On appeal, Held: High Court was factually incor-
rect that the respondents were in the death cell for the last three years-There
is no law conferring commutation of death sentence to life imprisonment ipso
facto on persons /anguishing in death cells for three years-Ghastly manner
of attack on the victims showed the act of killing was premeditated, senseless
E and beyond human reasoning--53 wounds inflicted on 5 persons-Offence
committed was rarest of rare case-H~nce death sentence awarded by trial
Court confirmed.

Criminal Procedure Code, 1973/Constitution of India: Section 377(3)
and 386(c)(iii)/Article J3(r-Section 377(3) applicable in case of appeal
F before the High Court only-Does not apply to an appeal under Article 136
of the Constitution-However, Supreme Court would keep in mind the prin·
ciples analogous to those found in the Cr.P.C. including Section 377(3) apart
from Supreme Court Rules to make the procedure fair.

The complainant purchased, from the grandfather of respondent No.
G 1, a part of the family house belonging to family of R-1. After the said
Purchase, complainant's family started living with the family of R-1 in the
same house. R-1 resented to the said purchase as he himself wanted to
purchase the same. Respondent No. 2, a law student, was harbouring evil
designs on the complainant's 15 years old niece. In order to fulfil his lust,
H 4-5 days before the occurrence, R-2 tried to molest the said girl. Despite
52
STATEv. DHARMENDRASINGH 53
threats from R·2, the young girl complained to the. complainant which A
resulted in thrashing of R-2. In order to seek revenge R·l and R-2, with the
support of four others caused death of all the five persons of the
complainant's family by ~nOicting multiple injuries while they were asleep.
The victims included an old aged 75 years, a woman aged 32, two boys both
aged 12 and the said girl aged 15. The Trial Court, convicting the respon·
dents, sentenced them to death and termed the case to be "rarest of the rare
B
cases". In appeal, High Court confirmed the conviction, but reduced the
sentence of death to life imprisonment on the ground that the respondents
were languishing in the death cell for the last more than three years. Hence
the present appeal by the State and a companion petition by the com-
plainant. c
The appellant-State contended that the Trial Court had awarded
death sentence to the respondents after giving cogent and acceptable
reasons as required by Section 354(3) Cr.P.C. and the High Court while
agreeing with the said finding of the Trial Court erred both in law and fact
in reducing the sentence of the respondents. D

- The respondents contended that if the Court is inclined to go into the
merits of the State appeal then the Court should consider the effect of
Sections 377(3) and 386 Cr.P.C. meaning thereby that in the event of this
Court's entertaining the State appeal, they were not only to show cause E
against enhancement of such sentence but also were entitled to plead for
] their complete acquittal or for reduction of the sentence.

Allowing the appeals, this Court

HELD : 1.1. High Court erred in refusing to confirm death sentence p
both factually and inferentially. First of all these respondents were not in
death cell for three years nor is there a law which says that a person in death
cell for three years ipso facto is entitled for commutation of death sentence.
While it is true that prolonged trial or execution of death sentence beyond
all reasonable period may be ground for commuting the death sentence in a
giving case, it will be highly erroneous to lay down as a principle in Ia.w or G
draw an inference on fact that awarding of death sentence is improper in
cases where accused persons are in custody for three years or more, even
though the facts of the case otherwise call for a death sentence. If the view
taken by the High Court in this case is to be accepted as a correct principle
then practically in no murder case death sentence can be awarded, since in H
54 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A this country normally a murder trial and confirmation of death sentence
takes more than three years. [62-C; D; El

Triveniben v. State of Gujarat, [1988] 4 SCC 574, relied on.

1.2. This Court would not ordinarily interfere in the sentence unless
B these is any illegality or it involves any question of principle. It is a legal
principle that the question of sentence is a matter of discretion and it is
well settled that when discretion has been properly exercised along accepted
judicial lines, an appellate Court should not interfere to the detriment of
an accused except for very strong and cogent reasons. The basis of High
Court's judgment to the extent that it has refused to confirm the death
C sentence awarded by the Trial Court is factually incorrect and opposed to
accepted legal principles. Consequently, it has failed to exercise its discre-
tion 1.1long accepted judicial lines. Not only the trial court had given cogent
reasons for awarding extreme penalty of death sentence in regard to the
respondent but also High Court, as a matter of fact, concurred with the
D conclusions arrived at by the Trial Court in this regard. [62-G; H; 63-C] ·.
1.3. The case of the prosecution shows that the respondents in fur-
therance of their diabolic motives conspired to teach a lesson to the com-
plainant by killing such of those members of the family who were vulnerable
-
and helpless. This is clear from the timing of the attack which was when
E other able members of the family were away from the house and only aged
and the weak remained alone in the house. Also the fact that they solicited
the help of four of their friends shows that the intention was to kill as many [
members of the complainant's family as possible, irrespective of the fact
whether the victims were the cause of their vengeance or not. The ghastly
mannrr of attack on the deceased, which is evident from the post-mortem
F report, shows that the act in question was premeditated, senseless, dastardly
and beyond all human reasoning inasmuch as 53 wounds were inflicted on
the 5 deceased persons; each one suffering at least 10 wounds on an average.
The attacks were aimed at such parts of the body in succession where even a
single stab would have, in the ordinary course, sufficed to have caused death.
G The denuding of lower part of the body of the victim girl showed an element
of perversity which could be attributed to the mind of frustrated men who
totaliy lacked human sensitivity. A holistic examination of the material on
record shows that the barbaric offence in question could only be termed as a
'rarest of the rare' case. [64-D; E; F; G]

H Ronny @Ronald James Alwaris & Ors. v. State of Maharashtra, [1988]
STATEv. DHARMENDRASINGH 55
3 sec 625, distinguished. A
! ..

..- 1.4. The contention that the respondents have entertained a just
expectation of survival on High Court's refusing to confirm death sentence
cannot stand. In a judicial system like ours where there is hierarchy of
Courts, possibility of reversal of judgments is inevitable, therefore, expec-
tations of an accused cannot be a mitigating factor to interfere in an appeal B
for enhancement of sentence of the same is otherwise called for in law.
[66-C; DJ

2.1. A perusal of Section 377 (3) Cr.P.C. shows that this provision is
applicable only when the matter is before the High Court and the same is
not applicable to this Court when an appeal for enhancement of sentence c
is made under Article 136 of the Constitution. It is to be noted that an
appeal to this Court in criminal matters is not provided under Cr.P.C.
except in cases covered by Section 379 Cr.P.C. An appeal to this Court
under Article 136 of the Constitution is not the same as statutory appeal
under the Code. This Court under Article 136 of the Constitution is not a
regular Court of appeal which an accused can approach as of right. It is D
an extraordinary jurisdiction which is exercisable only in exceptional cases
wheri this Court is satisfied that it should interfere to prevent a grave or
serious miscarriage of justice, as distinguished from mere error in ap-
predation of evidence. While exercising this jurisdiction, this Court is not
bound by the rules of procedure as applicable to the Courts below. This
Court's jurisdiction under Article 136 of the Constitution is limited by its E
own discretion. Section 377(3) Cr.P.C. does not apply to an appeal under
Article 136 of the Constitution. However, it does not mean that this Court
will be unmindful of the principles analogous to those i'Ound in the Code
including those under Section 377(3) while moulding a procedure for
disposal of an appeal under Article 136 of-the Constitution. Apart from
the Supreme Court Rules applicable for the disposal of the criminal F
appeals in this Court, the Court adopts such analogous principles found
in the Code so as to make the procedure a "fair procedure" depending on
the facts and circumstances. [58-H; 59-A; B; C; F; G]

' Nihal Singh v. State of Punjab, AIR (1965) SC 26 and Chandrakant
J
Patil Etc. v. State through CBI Etc., (1988) 3 SCC 38, relied on. G

UJ.S. Chopra v. State of Bombay, AIR (1955) SC 633, distinguished.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal
Nos. 982-983 of 1999. H
56 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A WITH

Cr!. A. Nos. 984"85/1999.

From the Judgment and Order dated 19.8.97 of the Allahabad High
Court in Crl.A. Nos. 2090 and 2011 of 1995.
B
D.D. Thakur, U.R. Lalit, M.N. Krishnamani, Pramod Swarup, AS.
Pundir, R. Srinivasan, N.N. Bhatt, Vijay Prakash, Lalit Kumar, Vimal Dave,
Javed M. Rao, Girish Chandra, K.M.K. Nair, Dr. Ramesh Haritosh, Rohul
Singh and Vipin Nair for the appearing parties.

c The Judgment of the Court was delivered by

SANTOSH HEGDE, J, : Cr!. A. Nos. 982"983/99 @ SLP (Cr!.) Nos.
1712" 13/98) :

Leave granted in the above S.L.Ps.
D
Heard learned counsel for the parties.

These appeals are preferred against the judgment and order dated
19.8.1997 passed in Crl. A. Nos. 2090/95 and 2011/95 by the High Court of
Allahabad wherein the High Court while confirming the conviction of the
E respondents herein and 4 others in connected appeals, rejected the refer"
ence made by the learned Sessions Judge for confirmation of death sen"
tence of the respondents and commuted the said sentence to life imprison"
ment for offences punishable under Section. 302 IPC. There is an accom"
panying SLP filed by the complainant in the case from which these appeals
F emanate. We consider it proper to deal with it separately.

The two respondents in these appeals along with 4 other persons
were charged with offences punishable under Sections 147/148/149/302 IPC
for having committed the murders of Pitamber Singh aged about 75 years,
Ramwati Devi aged about 32 years, (Ravi). Ravindra and Narendra both
G aged 12 years and Reeta aged about 15 years.

The prosecution case, narrated in brief, necessary for the disposal of
these appeals is as under :

The complainant " Chander Mohan had purchased a part of the
H family house and some land belonging to the family of Dharmendra,

r
STATE v. DHARMENDRASINGH [SANTOSH HEGDE, J.] 57

respondent herein, from latter's grand-father and started living with his A
family in that part of the residential building purchased. by him. Dhar-
mendra resented this purchase as he himself was intending to purchase the
same. Narendra, the other respondent in these api:ieals who is stated to be
a student of LL.B., was harbouring evil designs o,n Kumari Reeta and in
furtherance thereof he was constantly teasing her when she used to be on
her way to school. It is stated by the prosecution that in order to fulfil his
B
lust, about 4-5 days prior to the occurrence, he had tried to molest her and
also threatened her with dire consequences should she dare to complain
against him. It is stated that in spite of the threat Reeta did complain to
her Uncle, the complainant, about the misdemeanour of Narendra sequel
to which the complain~nt and his nephew gave a thrashing to the said c
accused Narendra. It is in .this background of hatred entertained by Dhar-
mendra and Narendra for%eir own causes that they enlisted the support
of the other accused who happened to be their close friends to wreak
vengeance on the family of the complainant, consequent to which the 6
accused together at about 3 a.m. in the night intervening 26th and 27th · D
May, 1994 caused the death of all the 5 persons in their sleep by inflicting
multiple stab injuries. It is stated by the prosecution that Pws.1 to 3 had
witnessed and identified these 6 accused persons leaving the place of
occurrence with blood stained weapons. The learned Sessions Judge on
. considering the material placed by the prosecution before him, came to the
conclusion that the prosecution had proved the charges against t_!ie accused E
persons and held them guilty of the said charges, and while convicting the
said persons awarded life sentence in regard to the 4 accused persons who
are not before us now. In regard to the two accused respondents who are
before us now, the learned Judge from the facts and circumstances of the
case came to the conclusion that they had committed a crime which could
F
be termed as 'rarest of the rare cases'. Hence, after assigning reasons,
proceeded to award the extreme penalty of death.

The matter was taken to the High Court at Allahabad both by way
-Of appeal by the accused persons and also by way of 'reference' for
confirmation of the death sentence. The High Court vide its judgment G
dated 19.8.1997 upheld the conviction of all the accused persons and while
confirming the sentence awarded on the other accused persons, who are
not respondents herein, came to the conclusion that the sentence of death
was not called for in view of the fact that the two respondents - Dhar-
mendra and Narendra - were languishing in death cell since 3.6.1994 and H
58 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R..

A 28.5.1994 respectively which is for a period of more than 3 years and
consequently, reduced the sentence to that of imprisonment for life.

Against the judgment of the High Court confirming the conviction
and awarding of sentence, the accused had preferred SLP (Crl) Nos.73-
75/98 before this Court which came to be dismissed on 23.1.1998. Against
B the order of the High Court refusing to confirm the sentence of death
awarded to the respondents herein, the State has preferred the above
appeals and the complainant has also preferred a companion petition
which we ha.ve already stated that we will deal with separately.

C At the outset, the learned counsel appearing for the respondents
herein contended that if the Court is inclined to go into the merits of the
State appeal then we should con~ider the eff~ct of Section 377(3) of the
Code of Criminal Procedure (for short 'the Code') read with Section
386C(iii) thereof. It is his contention that in the event of the Appellate
Court entertaining an appeal of the State against sentence then it is open
D to the accused not only to show cause against the enhancement of such
sentence but also to plead for his complete acquittal or for reduction of
the sentence. It was also pointed out to us that in view of the provisions of
Section 386 of the Code, it is open to us as an Appellate Court in an appeal
for enhancement of sentence to alter the sentence also. He placed strong
a
E reliance on decision of this Court in U.J.S. Chopra V. State of Bombay,
AIR (1955) SC 633. I

Section 377(3) of the Code reads thus :-

"377. Appeal by the State Government against sentence. -
F (1) xx x

(2) xx x

(3) When an appeal has been filed against the sentence on the
ground of its inadequacy, the High Court shall not enhance the
G
sentence except after giving to the accused a reasonable oppor-
tunity of showing cause against such enhancement and while show-
ing cause, the accused may plead for his acquittal or for the
reduction of the sentence."

H A perusal of this Section shows that this provision is applicable only
STATE v. DHARMENDRA SINGH [SANTOSH HEGDE, J.] 59

when the matter is before the High Court and the same is not applicable A
to this Court when an appeal for enhancement of sentence is made under
Article 136 of the Constitution. It is to be noted that an appeal to this Court
in criminal matters is not provided under the Code except in cases covered
by Section 379 of the Code. An appeal to this Court under Article 136 of
the Constitution is not the same as a statutory appeal under the Code. This
Court under Article 136 of the Constitution is not a regular court of appeal
B
which an accused can approach as of right. It is an extraordinary jurisdic-
tion which is exercisable only in exceptional .cases when this Court is
satisfied that it should interfere to prevent a grave ~r serious miscarriage
of justice, as distinguished from mere error in appreciation of .evidence.
While exercising this jurisdiction, this Court is not bound by the rules of c
procedure as applicable to the courts below. This Court's jurisdiction
under Article 136 of the Constitution is limited only by its own discretion
(See Nihal Singh & Ors. v. The State of Punjab, AIR (1965) SC 26.) In that
view of the matter, we are of the opinion that Section 373(3) of the Code
in terms does not apply to an appeal under Article 136. of the Constitution. D
We are supported in. this view of ours by a judgment of this Court in
Chandrakant Patil Etc. v. State through CBI Etc., [1998) 3 SCC 38 wherein
this Court while considering a similar argument held : "The right envisaged
in Section 377(3) of the present. Code shall be confined to appeals
presented by the Government to the High Court against sentence on the
ground of its inadequacy." .On the contrary, the judgment relied upon by E
learned counsel for the respondents in Chopra's case (supra) will not assist
him because in that case this Court was dealing with the right of an accused
to plead for acquittal in a statutory appeal filed by the State for enhance-
ment of sentence before the High Court which is available under the
Section itself.
F
This does not mean that this Court will be unmindful of the principles
analogous to those found in the Code including those under Section 373(3)
of the Code while moulding a procedure for the disposal of an appeal
under Article 136 of the Constitution. Apart from the Supreme Court
Rules applicable for the disposal of the criminal appeals in this Court, the G
Court also adopts such analogous principles found in the Code so as to
make the procedure a "fair procedure" depending on the facts and cir-
cumstances of the case.

In the instant case both the Trial Court and the High Court have H
60 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R.

A considered. the entire material on record and have concurrently found the
respondents guilty of the offence they are charged. As against the said
conviction and sentence, the respondents had preferred a substantive
special leave petition under Article 136 of the Constitution before this
Court which was dismissed on merits, and the respondents have not chosen
B to prefer any review petition against the said dismissal order. In this
background we do not consider it appropriate to accede to this request of
the respondents because neither the facts and circumstances of the case
nor public interest requires us to do so,

In the light of the fact that the appeal is one for seeking the extreme
C penalty of death, we have also permitted the learned counsel representing
the appellant in the companion matter to address us on the merits of the
State app'eal even though that petition is not taken up for hearing with ·
these appeals. On behalf of the State as well as the complainant, it was
argued that the learned Sessions Judge had while awarding death sentence
D to the respondents herein, given cogent and acceptable reasons as required
under Section 354(3) of the Code and the High Court while agreeing with
the said finding of the Trial Court seriously erred both in law and in fact
in coming to the conclusion that the respondents herein were languishing
in death cell since 3.6.1994 and. 28.5.1994 respectively i.e. for more than 3
E years, hence, it is not proper to award death sentence. It was contended
that this reasoning of the High Court is not sustainable either in law or on
facts. It is contended that factually the High Court was in error in saying
that the said persons were in death cell since 3.6.1994 and 28.5.1994
respectively. It was pointed out to us that 28.5.1994 and 3.6.1994 are the
dates on which the respondents were taken into custody as under-trial
· F prisoners and they were not in death cell. The learned Sessions Judge
awarded death sentence to these accused persons only on 5.12.1995 which
came to be altered by the judgment of the High Court on 19.8.1997. It is
argued that even this period cannot be labelled as being in the death cell
since the death sentence was yet to be confirmed by the High Court. At
G any rate, according to the State, the time-lag between awarding of death
sentence i.e. 5.12.1995 by the Trial Court and the judgment of the High
Court i.e. 19.8.1997 being 21 months (not even two years), the High Court
seems to have misdirected itself in refusing to confirm the sentence of
death. It was also argued that on facts the crime committed by these
H respondents along with other accused persons is such a dastardly and
. STATE v. DHARMENDRASINGH [SANTOSH HEGDE, J.] 61
heinous crime which cannot but be called 'rarest of the rare' case in which A
these 2 respondents being the principal perpetrators of the crime, were
rightly awarded capital punishment by the Sessions Court. It is further
argued that the High Court has agreed with this finding but refused to
confirm the sentence on an erroneous ground which is unsustainable in law,
therefore, it is a fit case in which the judgment of the High Court be B
reversed and the sentence be enhanced.

. Learned counsel for the respondents, per contra, has strenuously
argued that this is not a fit case even for conviction; much less a case for
extreme penalty of death. It was contended that both the Courts below have
based the conviction on conjectures and surmises against all probabilities. C
At any rate, the prosecution has failed to establish who amongst the 6
accused persons has actually dealt the blows i.e. individual overt acts that
have not been established. Therefore, even if the conviction is to be upheld,
the capital punishment should not be granted. In support of this
contentions, respondents' counsel relied upon a judgment of this Court in D
Ronny @ Ronald James Alwaris & Ors. v. State of Maharashtra, [1988] 3
sec 625. It was also argued that even otherwise the facts of the case do
not warrant imposition of death sentence and these two respondents having
reconciled themsf)lves to the judgment of the High Court, have an
expectation of survival and which expectation of theirs should not be E
destroyed.

We have carefully perused the evidence adduced in this case, to the
limited extent of examining whether the case in hand is a case which could
be termed as rarest of the rare cases so as to invoke the extreme penalty
of death. The learned Sessions Judge while assigning special reasons for F
awarding the capital punishment came to the conclusion that the crime in
question was a dastardly crime involving the death of 5 innocent human
beings for the purpose of achieving the sadistic goals of Dharmendra and
Narendra, respondents herein, to avenge their respective grouse against the
complainant and his niece Reeta by eliminating 5 members of the family. G
Learned Sessions Judge distinguished the case of the 4 other accused with
that of these respondents based on the motive and on the ground that these
· ,respondents were the principal perpetrators of the crime. It is· seen that
the High Court has concurred with this reasoning of the Sessions Judge.
However, the High Court on the ground that the accused have languished H
62 SUPREME COURT REPORTS (1999] SUPP. 3 S.C.R. ...
A in the death cell for 3 years, altered the sentence to life imprisonment. At
this stage, it is necessary to extract the reasoning of the High C~urt on this
score :

"xx x the appellants Dharmendra and Narendra are languishing
-
-=:

in death cell since 3.6.1994 and 28.5.1994, respectively, i.e. more
B than three years. Consequently now it may not be proper to
confirm the sentence of death passed on them by the Trial Court."

The High Court has erred in coming to this conclusion both factually
as well as inferentially. First of all these respondents were not in death cell
C for 3 years nor is there a law which says that a person in death cell for 3
years ipso facto is entitled for commutation of death sentence. While it is
true that prolonged trial or execution of the death sentence beyond all
reasonable period may be a ground for commuting the death sentence in
a given case, it will be highly erroneous to lay down as a principle in law
D or draw an• inference on fact that awarding of death sentence is improper
in cases where accused persons are in custody for 3 years or more, even
though the facts of the case otherwise call for a death sentence. If the view
taken by the High Court in this case is to be accepted as a correct principle
then practically in no murder case death sentence can be awarded, since
E in this country normally a murder trial and confirmation of death sentence
takes more than 3 years. This Court speaking through a Constitution Bench
in Smt. Triveni Ben Etc. v. State of Gujarat Etc., (1988] 4 SCC 574 has held:
"No fixed period of delay could be held to make the sentence of death
inexecutable ... " It is useful to notice herein that in Triveni Ben's case, this
F Court was considering the delay in execution of the sentence and not even
imposition of sentence, a stagP, much earlier to execution. Therefore, we
have no doubt in coming to the conclusion that the High Court has erred
in the reasoning given by it in refusing to confirm the sentence of death
awarded by the Trial Court.

·G Before examining the case of the State for enhancement of the
sentence on merits, we will have to bear in mind that this Court would not
ordinarily interfere in the sentence unless there is any illegality or it
involves any question of principle. We are also aware of the legal principle
. that the question of sentence is a matter of discretion and that it is
H well-settled that when discretion has been properly exercised along
STATE v. DHARM~NDRASINGH [SANTOSH HEGDE, J.] 63

accepted judicial lines, an appellate Court should not interfere to the A
detriment of an accused except for very strong and cogent reasons. We
have noticed earlier that the basis of the High Court's judgment to the
extent that it has refused to confirm the death sentence awarded by the
Trial Court is factually incorrect and opposed to accepted legal principles.
Consequently, it has failed to exercise its discretion along accepted judicial B
lines.

We will now consider whether there are strong reasons for accepting
the decision of the Trial Court to impose death sentence and are these
reasons strong enough to reverse the decision of the High Court.
c
We have already noticed that the Trial Court has given cogent
reasons for awarding the extreme penalty of death in regard to these
respondents. We have also noticed that the High Court has, as a matter of
fact, concurred with the conclusions arrived at by the Trial Court in this
regard.. In this context, it is useful to extract the observations of the High
Court which are as under : D
"x x x As the whole episode was planned and prepared by Dhar-
mendra and Narendra; hence they deserve extreme penalty for the
commission of five murders two boys of 12 years, Km. Reeta,
Ramwati, wife of complainant, and Pitamber an old person of 70
E
years. They have committed murders in a very cruel and brutal
manner inflicting as many as 53 injuries on five persons. The Court
below has not committed any error in awarding the extreme penalty
of death to Narendra and Dharmendra, who were instrumental
behind the whole episode of awful tragedy."
F
A perusal of this conclusion of the High Court gives the impression
that but for the erroneous impression it carried, it would have confirmed
the sentence of death awarded to these 2 respondents.

It was argued on behalf of the respondents that the findings of the
Courts below even in regard to the commission of the offence, are contrary G
to facts. Hence, at least, in regard to the awarding of sentence, we should
not interfere in these appeals. So far as the commission of the offence is
concerned, the Special Leave Petition filed by the respondents was .dis-
missed by this Court and the findings of the courts below have become
final. As stated above, we have examined ours~lves the evidence in this case H
64 SUPREME COURT REPORTS [1999] SUPP. 3 S.C.R.

A for the limited purpose of ascertaining whether this case could be· treated
as one of the rarest of rare cases, calling for the extreme penalty of death;
more sci in the background of the argument on behalf of the respondents
that the prosecution has not been able to establish the individual overt acts
of the accused persons.

B The prosecution in this case, as accepted by the two courts below,
has established the fact that Dharmendra nursed a grudge against the
complainant for having purchased the family property including the
residential part against his desire to own the same. The prosecution has
also established that Narendra, though an educated person who at the time
C of the incident, was pursuing his LL.B. course had been entertaining a lust
towards Reeta and in furtherance of this desire had been teasing her and
also a few days prior to the incident, had tried to molest her consequent
to which, upon a complaint made by Reeta, the complainant and his
nephew had assaulted Narendra. This case of the prosecution shows that
D these two persons in furtherance of their diabolic motive conspired to teach ·.
a lesson to the complainant by killing such of those members of the family
who were vulnerable and helpless. This is clear from the timing of the
attack which was when other able members of the family were away from
the house and only the aged and the weak remained alone in the house.
Also the fact that they solicited the help of four of their friends (other ·
E accused) shows that the intention was to kill as many members of the
complainant family as possible, irrespective of the fact whether the victims
were the cause of their.vengeance or not. The ghastly manner of attack on
the deceased, which is eviden '. from the post mortem report, shows that
the act in question was premeditated, senseless, dastardly and beyond all
p human reasoning inasmuch as 53 wounds were inflided .on the 5 deceased
[
persons; each one suffering at least 10 wounds on an average. The attacks
were aimed at such parts of the body in succession where even a single
stab would have, in the ordinary course, sufficed to cause death. The
denuding of the lower part of the body of Reeta showed an element of
perversity which could be attributed to the mind of frustrated men who
G totally lacked human sensitivity. A holistic examination of the material on·
record shows that the barbaric offence in question could only be termed
as a 'rarest of the rare' case.

Learned counsel for the respondents, however, relied upon the
H judgment of this Court in Ronny's case (supra) in support of his contention
STATEv. DHARMENDRASINGH (SANTOSH HEGDE,J.] 65

that even if the act of murder is to be assumed to be brutal since the A
prosecution has failed to establish the overt acts of the individual accused,
the sentence of death should not be awarded. We have carefully perused
the said judgment. We do not find that this.Court has enunciated any such
proposition in absolute terms. It is possible in a given set of facts that the
Court might think even in a case where death sentence can be awarded,
B
the same need not be awarded because of the peculiar facts of that case
like the possibility of one or more of the accused being responsible for
offences_ less culpable than the other accused. In such circumstances, in the
absence of their being no material available, to bifurcate the case of each
accused person, the Court might think it prudent not to award the extreme
penalty of death. But then such a decision would rest on the availability of c
evidence in a particular case. We do not think that a straight-jacket formula
for awarding death sentence can be evolved which is applicable to all cases.
The facts of each case will have their own implication on the question of
awarding sentence. In the Ronny's case (supra), this Court on facts found
extenuating factors to curb the sentence which is clear from the following D.
extract from the said judgment :- -

"From the facts and circumstances, it is not possible to predict as to
who among the three played which part. It may be that the role of one has
been more culpable in degree than that of the other~ and vice versa. Where E
in a case like this it is not possible to say as to whose case falls within the
"rarest of the rare" cases, it would serve the ends of justice if the capital
punishment is commuted into life imprisonment."

Whereas in the appeals before us the Trial Court as well as the High
Court have distinguished the case of these two respondents vis-a-vis the F
other accused persons for cogent reasons. We have also agreed with this
view of the courts below. Therefore, the predicament that was existing in
Ronny's case (supra), apart from the extenuating factors, does not exist in
this case.
G
In Ronny's case itself, this Court while discussing the role of the
Court in imposing the extreme penalty in Para 40 of the said case, has
observed thus : "The obligation of the_ Court in making the choice of death··
~ sentence for the person who is found guilty of murder is onerous indeed.
I But by sentencing a person to death, the Court is giving effect to the H
66 SUPREME COURT REPORTS (1999) SUPP. 3 S.C.R.

A · command of law which is in public interest whereas in committing the
murder or being privy to commit murder, even if it be a vengeance for
another murder, the convict is violating the law which is against public
interest."

These observations of this Court show that there is an obligation on
B the courts in appropriate cases to award the sentence of death.

The last argument advanced on behalf of the respondents is based
on the expectation of .survival entertained by the respondents after the
judgments of the High Court. It is contended that after the High Court
C refused to confirm the death sentence, the respondents have entertained a
just expectation of survival and, therefore, we should not interfere with the
said judgment. We do not find any legal basis for this argument. In a
judicial system like ours where there is hierarchy of courts, possibility of
reversal of judgments is inevitable, therefore, expectations of an accused
cannot be a mitigating factor to interfere in an appeal for enhancement of
D sentence if the same is otherwise called for in law.

Taking into consideration the brutality of attack, number of persons
murdered, age and infirmity of the victims, their vulnerability and the
diabolic motive, acts of perversion on the person of Reeta, cumulatively we
E find the sentence awarded by the Trial Court was just and proper. We have
examined this case carefully and having given our anxious thought to the
facts, we have found no mitigating circumstances in favour of the respon-
dents herein. We are, therefore, constrained to reverse the judgment of the
High Court by allowing these appeals, setting aside the judgment and
orders of the High Court to the extent impugned in these appeals, and .
F confirm the sentence of death awarded by the Trial Court.

SLP (Cr!.) (3157-3158/99) (Crl.MP Nos. 2445-46/98)

In view of the judgment delivered by us in Crl.A. Nos. 982-83/99 (@
G SLP (Cr!) Nos. 1712-13/98), no orders are called for in this case and the
same is disposed of accordingly.

R.C.K. Appeals allowed.