# VIVIAN RODRICK v. STATE OF WEST BENGAL

- **Citation:** [1971] 3 S.C.R. 546
- **Court:** Supreme Court of India
- **Decided:** 1971-01-27
- **Case number:** Criminal Appeal No. 137 of 1970
- **Bench:** S. M. Sikri, P. Jaganmohan Reddy, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vivian-rodrick-v-state-of-west-bengal-5187
- **Pages:** 4

## Headnote

Criminal Law-Sentence of death-Inordinate delay in disposing of
appeal by High Court-If ground for awarding lesser sentence.
The accused was committed 10 1rial in July 1963 and was convicted
A
B
and sentenced to death on September 4, 1964. The appeal to the High
Court under s. 411A, Cr. P.C., was finally dismissed on February 6, 1970.
C
The High Court left it to the State Government whether it should, reduce .
the sentence on account of inordinate delay.
·
·
In appeal to this Court on th~ quesfion of sentence,
HELD : Section 302, l.P.C., prescribes two alternate sentences, namely, .. ·n·· ·.·.·.· ... ' .. :
.. ' ... •
.• .r.·.:
.. ,~
death sentence or imprisonment for life. When there has been inordinat~
1
delay fa the disposal of the ap;1eal by the High Court, it is a relevant
factor for the High Court to take into consideration for imposing the
lesser oentence. [549 A-Bl
In the present case, the appellant has been for 6 years under the. f,ear
of sentence of death, which must have caused him unimaginable mental
agony.
In view of the excessive delay it is a fit case for awarding .the
lesser sentence instead of leaving it to the Government to decide the
matter on a mercy petition. (549 B-Dl
Nawab Singh v. State of U.P., A.LR. 1954 S.C. 278, referred to.
CRI¥£INAL APPELLATE JURISDICTION: Criminal Appeal No.
137 of 1970.
E
Appeal by special leave from the judgment and order dated
F
February 6, 1970 of the Calcutta High Court in Criminal Appeal
No. 5 of 1964.
0. P. Rana, for the appellant.
S. P. Mitra and Sukumar Basu, for the respondent.

## Text

546
VIVIAN RODRICK
v.
STATE OF WEST BENGAL
January 27, 1971
[S. M. SIKRI, C.J., P. JAGANMOHAN REDDY
AND I. D. DuA, JJ.]
Criminal Law-Sentence of death-Inordinate delay in disposing of
appeal by High Court-If ground for awarding lesser sentence.
The accused was committed 10 1rial in July 1963 and was convicted
A
B
and sentenced to death on September 4, 1964. The appeal to the High
Court under s. 411A, Cr. P.C., was finally dismissed on February 6, 1970.
C
The High Court left it to the State Government whether it should, reduce .
the sentence on account of inordinate delay.
·
·
In appeal to this Court on th~ quesfion of sentence,
HELD : Section 302, l.P.C., prescribes two alternate sentences, namely, .. ·n·· ·.·.·.· ... ' .. :
.. ' ... •
.• .r.·.:
.. ,~
death sentence or imprisonment for life. When there has been inordinat~
1
delay fa the disposal of the ap;1eal by the High Court, it is a relevant
factor for the High Court to take into consideration for imposing the
lesser oentence. [549 A-Bl
In the present case, the appellant has been for 6 years under the. f,ear
of sentence of death, which must have caused him unimaginable mental
agony.
In view of the excessive delay it is a fit case for awarding .the
lesser sentence instead of leaving it to the Government to decide the
matter on a mercy petition. (549 B-Dl
Nawab Singh v. State of U.P., A.LR. 1954 S.C. 278, referred to.
CRI¥£INAL APPELLATE JURISDICTION: Criminal Appeal No.
137 of 1970.
E
Appeal by special leave from the judgment and order dated
F
February 6, 1970 of the Calcutta High Court in Criminal Appeal
No. 5 of 1964.
0. P. Rana, for the appellant.
S. P. Mitra and Sukumar Basu, for the respondent.
The Judgment of the Court was delivered by
Sikri, C.J. In this. case special leave was limited to the question of sentence only The relevant facts for determining this
point are as f9llows : The appellant, Vivian Rodrick, was tried
by the High Court of Calcutta, in exercise of its original jurisdiction, having ]J.;!en committed to stand his trial by the Presidency
Magistrate as early as July 31, 1963.
The substance of the
charges against the appellant were as follows :
G
H
A.
c
D
E
.F
Ii
VIVIAN RODRICK V, WEST llENGAL (Sikri, C.J.)
54 7
(i) that on January 13, 1963 the appellant was a
member of an unlawful assembty guilty of riot·
ing, being armed with deadly weapons and as
such punishable under section 148, I.P.C.;
(ii)
(iii)
that on January 13, 1963· the appellant committed the murder of one Vincent D'Rozaric and
thereby committed an offence punishable under
section 302, l.P .C.; and
that on January 13, 1963 the appellant was in
possession of explosive substances for unlawful
object and thereby committed an offence under
section 5 of the Explosive Substances Act.
Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das
and Ranjit Biswas were also tried jointly with the appellant and
convicted under s. 302 read with s. 149, and also under s. 148,
l.P .C. The jury returned a unanimous verdict of guilty against
the appellant and on September 4, 1964 the Presiding Judge con·
victed the appellant under s. 302, I.P.C., and sentenced him to
death. At the trial the appellant was also convicted for offences
under s. 148, I.P .C., and s. 5 of the Explosive Substances Act, and
sentenced to rigorous imprisonment for two years and three years
respectively. The terms of imprisonment were directed to run
concurrently.
The appellant filed a petition of appeal under s. 41 lA, Cr. P.C.,
on September 7, 1964, challenging his conviction and the sentences imposed on him. The High Court,_ by its judgment dated
September 19, 1967 in Criminal Appeal No. 5 of 1964, confirmed
the conviction and sentences imposed on the aptlellant. In considering the question of sentence the High Court observed that
"the murder was a premeditated and cold-bl9oded one.
There
was not the slightest provocation from the side of the deceased. ·
This is undoubtedly a fit case for capital punishment. No question
of showing any leniency on the ground of tenderness of age arises
as the appellant is now aged about 35 years." It was urged before the High Court that the sentence of death should be reduced
to rigorous imprisonment for life on account of the long delay
that had taken place in hearing the appeal. Although the High
Court regretted the delay and the consequent mental suffering
undergone by the condemned prisoner, it felt that the "delay in
executing thl( death sentence was not by itself a sufficient-ground
for which the court should exercise its jurisdiction to commute the
death sentence to one of imprisonment for life."
The appellant sought leave to appeal to this Court against the
judgment of the High Court on October 21, 1967, and the same
548
SUPREME COURT REPORTS
[1971 J 3 S.C.R.
was refused on January 8, 1968. Having obtained special leave,
the appellant filed an appeal to this Court (Criminal
Appe~l
No. 190 of 1968). By its judgment dated April 30, 1969, this
Court set aside the the judgment and order of the High Court,
dated September 19, 1967, and remanded the appeal to the High
Court for fresh disposal and hearing in accordance with law and
in the light of the observations contained in this Court's judgment.
This Court in its judgment in Cr. Ap. No. 190 of 1968 observed,
regarding the four other co-accused, as follows :
"Though the conviction was for an offence under
section 302 read with section 149, I.P.C., curiously they
were sentenced to varying terms of imprisonment, and
none of them challenged their conviction in appeals."
On remand the appeal was again dismissed by the High Court
on Feoruary 6, 1970.
Chakrabarti, J., with whom Amaresh
Chandra Roy, J., agreed, again considered the question of sentence and held that 'although there had been a delay of more than
five years in executing the death sentence that was not by itself
sufficient ground for commuting the death
senten~. The High
Court referred to Nawab Singh v. The State of Uttar Pradesh('1)
and Piare Dusadh v. King Emperor('). As the High Court did
not find any extenuating circumstances whatsoever that would
Justify its taking a lenient view in the matter, it left to the State
Government to take a decision as to whether it should, on account
of inordinate delay in executing the sentence, exercise its powers
under s. 402, Cr. P.C.
A
B
c
D
E
The learned counsel for the appellant contends that the matter
should not have been left to the State Government.
In Nawab
Singh v. The State of Uttar Pradesh(''), which has been referred to
F
by the High Court in its judgment dated February 6, 1970, it is
observed:
"It is true that in proper cases an inordinate delay
in the executian of the death sentence may be regarded
as a ground for commuting it, but we desire to point out
that this is no rule of law and is a matter primarily for
consideration of the local Government. If the Court
has to ex.erci.Se a discretion in such matter, the other
facts of such case would have to be taken into consideration. · In the case before us, we find that the murder was
a cruel and deliberate one and there was no extenuating
circumstance whatsoever which would justify us in
ordering a commutation of the death sentence."
(I) A.LR. 1954 S.C. 278.
(2) [1944] F.C.R. 61
G
H
•r"
~
~
>i
~
1 ..
.,.
/
A
B
c
D
''7"\ .,
VIVIAN RODRICK v. WEST BENGAL (Sikri, C.J.)
54&
It seems to us that the extremely excessive delay in the dis·
posal of the case of the appellant would by itself be sufficient for
imposing a lesser sentence of imprisonment for life under s. 302.
Section 302, I.P.C., prescribes two alternate sente;Jces, namely,
death sentence or imprisonment for life, and when there has been
inordinate delay in the disposal of the appeal by the High Court
it seems to us that it is a relevant factor for the High Court to take
into consideration for imposing the lesser sentence. In this parti·
cular case, as pointed ·out above, the appellant was committed to
trial by the Presidency Magistrate as early as July, 31, 1963, and
he was convicted by the Trial Judge on September 4, 1964. It is
now January 1971, and the appellant has been for more than six
years under the f.ear of sentence of death. This must have caused
him unimaginable mental agony. In our opinion it would be
inhuman to make him sulfer till the Government decid5 the
matter on a mercy petition. We consider that this is now a fit case
for awarding the sentence of imprisonment for life. Accordingly
we accept the appeal, set aside the order of the High Court award·
ing death sentence and award a sentence of imprisonment for life.
The sentences under s. 148, I.P.C., and s. S of the Explosive Substances Act and under s. 302; I.P.9., shall run concurrently.
V.P.S.
Sentence modified.