Allahabad High Court
State Of U.P. vs Sri Krishna And Others on 26 May, 2014
Bench: Amar Saran, Kalimullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 46
Case :- GOVERNMENT APPEAL No. - 2783 of 2011
Appellant :- State Of U.P.
Respondent :- Sri Krishna And Others
Counsel for Appellant :- Govt.Advocate,Akash Mishra,M.D.Mishra
Counsel for Respondent :- Ajay Vikram Yadav,V.S. Parmar
Hon'ble Amar Saran,J.
Hon'ble Kalimullah Khan,J.
This Government Appeal has been filed seeking enhancement of the sentence of the accused-respondents, who have been awarded sentence of imprisonment for life by the judgement dated 12.8.2010 passed by the Additional Sessions Judge, Court No. 2, Firozabad.
It is argued that the the accused-respondent Umesh alias Gudda was given the main role of firing on the deceased. There are injured witnesses and the cartridge found from the spot is said to have tallied with the rifle used by the appellant Umesh alias Gudda.
Learned counsel for the complainant Sri M.D. Mishra placed reliance on a decision of 1976 S.C.C. (Cri) 436 Kartar Singh Vs. State of Punjab. In the said case, a death sentence was awarded. The incident was of 26.12.1971. We may mention that considering the question of sentence, the Trial Judge has observed that no active role was assigned to the accused Babli and she is not said to be armed and that the fire of Sri Krishna did not strike the deceased, but the firing of Umesh alias Gudda only struck the deceased. It is clarified in the judgement that none of the accused persons were previous convicts and the incident took place all of a sudden and the case did not fall in the category of rarest of rare cases. No evidence of previous conviction was produced. In Balwant Singh Vs. State of Punjab, (1976) 1 SCC, 425, it has been held that according to the earlier position as mentioned in the Code of Criminal Procedure 1898, (S. 367 (5)), [as it stood before its amendment by Act 25 of 1955], if an accused was convicted for an offence punishable with death and if the Court chose to award any penalty other than death the reasons needed to be stated why the death penalty was not awarded. By the Amendment Act 26 of 1955 the said provision was deleted. Thereafter it was left to the discretion of the Court on the facts of each case to award death sentence or the lesser sentence. However, after the New Criminal Procedure Code 1973, which came in force from 1.4.1974 under section 354 (3) which would apply to this case, where the conviction is for an offence punishable with death, or in the alternative imprisonment for life, the judgement has to mention the special reasons for awarding the death sentence. Therefore, the general rule now is to award life imprisonment and death sentence is the exception to be awarded for special reasons in the rarest of rare cases. The 5 Judges Constitutional bench decision in Bachan Singh vs. State of Punjab, has approved the enunciation of the law by the 2 Judges Bench in Balwant Singh (supra). It has also been mentioned in Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 that before awarding a sentence of death, there must be a clear finding that the accused is incapable of reform and there must be material evidence to substantiate this fact. Such evidence is not present in this case. We, therefore, find no good reason to issue notice to the accused-respondents as to why the sentence awarded against them be enhanced.
The Government Appeal for enhancement of sentence is dismissed.
Order Date :- 26.5.2014
HSM
