(1.) His Lordship after considering the evidence in the case proceeded.] Accordingly the convictions of both the accused under Section 394 read with Section 397, Indian Penal Code, under Section 302 read with Section 34, Indian Penal Code, under Section 326 read with Section 34, Indian Penal Code, and under Section 324 read with Section 34, Indian Penal Code, is perfectly correct. Since we have come to the conclusion on evidence that accused No. 1 had carried and fired revolvers and accused No. 2 had carried and fired a pistol, and since they had no licence to carry and possess fire -arms, their convictions under Section 19(e) of the Indian Arms Act and under Section 68(7) of the Bombay District Police Act are also correct. In the result, Appeals Nos. 1408 and 1423 of 1953 fail and are dismissed.
(2.) WE next proceed to deal with Criminal Revisional Application No. 1074 of 1953 filed by the State. This revisional application raises the question whether the sentences of transportation for life passed on the two accused under Section 302 read with Section 34 of the Indian Penal Code for the murders of Bhika and Lalkhan should be enhanced to sentences of death on both the accused. The learned Additional Sessions Judge has said in the course of his judgment that on merits both the accused would deserve the sentence of death. Bat he has passed a lesser sentence in view of the fact that both the accused were under sentence of death for two years and two months from March 13, 1950, to May 20, 1952, on which date the Supreme Court reversed the order of conviction and sentence passed on both the accused on a technical ground that, after the coming into force of the Constitution, the Court of the Special Judge had no jurisdiction to try the case of the accused. To quote the words of the learned Judge, he was inclined to accept Shri Pandya's plea on a consideration of the fact that the death sentence awarded to the accused by the Special Judge remained hanging over them for over two years.
(3.) THE true principle which would govern the question of enhancement of sentence from transportation for life to one of death is laid down by the Supreme Court in Dalip Singh v. The State of Punjab (1953) 16 S.C.J. 532. It was observed by their Lordships in this case as follows (p. 538):.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 th. 9 facts are so gross that no normal judicial mind would have awarded the lesser penalty. Then their Lordships proceeded to say that it was impossible to lay down a hard and fast rule for every case and that each case must depend on its own facts. It is, therefore, clear that there is no settled rule and there can be none that whenever a person is under a sentence of death for a year or two, the sentence of death should not be confirmed or the sentence of transportation for life should not be enhanced to death. Indeed, as I have already said, a lapse of a year at least is inevitable in most cases between the passing of the sentence of death and its eventual confirmation by the Supreme Court.