RAJNIKANT KESHAV BHANDARI Vs. STATE

JUDGEMENT

(1.) This petition has been made by Rajnikant Keshav Bhandari under clause (c) of Article 134(1) of the Constitution of India, for grant of a certificate to him that his is a fit case for appeal to the Supreme Court. The petitioner Bhandari was tried along with Ramdas Shivram Naik before the Sessions Judge, Panjim, on charges under Ss. 302, 397 and 201 read with S. 34 of the Indian Penal Code. The Sessions Judge acquitted Ramdas of all the charges but found the present petitioner guilty under Ss. 302, 397 and 201 I. P. C. He sentenced the petitioner to death on the charge under S. 302 but did not prescribe any separate sentences for the offences under Ss. 397 and 201 I. P. C. Bhandari filed an appeal in this Court against this conviction and sentence and a reference was made by the Sessions Judge in terms of S. 374 of the Criminal Procedure Code for confirmation of the death sentence. When the appeal and the reference came up for hearing, this Court was presided over by the Judicial Commissioner and two Additional judicial Commissioners including Dr. A. Dias, who has since retired. The Judicial Commissioner and Dr. Dias accepted the reference, rejected the appeal and confirmed the death sentence on Bhandari. My findings were that Bhandari and Ramdas (since acquitted) acted in concert in killing Camalacanta the deceased of this case, that Ramdas appeared to have been wrongly acquitted, that as such a notice should Be issued to him in exercise of our revisional jurisdiction calling upon him to show cause why his acquittal should not be set aside that the evidence on the record could legitimately yield the inference that the head injuries, which had proved fatal, had been administered by Ramdas, that there was no dependable evidence on the record to establish what had led the present petitioner and Ramdas to kill Camlacanta, that the circumstantial evidence does not rule out the conclusions that there might have been a sudden flare-up between the deceased on one hand and the two accused on the other and that on the impulse of the moment assault had been made on Camlacanta, and that for these reasons the appropriate sentence under S. 302 I. P. C. should be life imprisonment.

(2.) After studying the exact scope of the powers of the High Court in the matter of issuance of certificate of fitness under Art. 134 (1) (c) of the Constitution and on carefully weighing the arguments addressed by Shri Lele, the learned counsel for the petitioner, I have reached the conclusion that the certificate should be issued. It was held in Babu V/s. State of Uttar Pradesh, 1965 AIR(SC) 1467, that the High Court must be satisfied before it certifies a case that it involves some substantial question of law or principle.

(3.) The learned Sessions Judge was of the opinion that death is the ordinary and usual sentence prescribed by the law for a murder case and that where crime of a particular character is rife it is the only appropriate sentence. He went on to observe that it is not for the judge to ask himself whether there are reasons for imposing the penalty of death but whether there are reasons for abstaining from doing so, and that it is not the correct view that a sentence of death should not be passed unless there are aggravating circumstances. The correct view, according to him, is that a sentence of death should be passed unless there are reasons to the contrary. It was in para. 20 of the majority judgment that the question of imposition of appropriate sentence was examined. Reliance was placed inter alia on Supreme Court authority. Dalip Singh V/s. State of Punjab, 1953 AIR(SC) 364 (367), where it was held that in a case of murder the death should ordinarily be imposed unless the trying Judge for reasons recorded by him considers it proper to award a lesser penalty.