Y.V. CHANDRACHUD, J.
1. The appellant was tried by the learned Sessions Judge, Puri, under Sections 302, 352 and 323 of the Penal Code. The main charge against the appellant was that on January 21, 1972 he committed the murder of his adoptive brother Khetra Mohan Mohanty. The learned Sessions Judge convicted the appellant under Section 302 and sentenced him to imprisonment for life. The appellant filed an appeal against that judgment and the High Court of Orissa, Cuttack, issued a notice to the appellant asking him to show cause why the sentence should not be enhanced. The appeal was thereafter heard by a Division Bench which confirmed the conviction of the appellant under Section 302 and enhanced the sentence to death. This appeal, by special leave, is directed against the judgment of the High Court, but the special leave is restricted to the question of sentence.
2. Mr Nandy, appearing on behalf of the appellant argues that the prosecution has not established its case beyond a reasonable doubt but such an argument is not open to him because the special leave was granted by this Court on the question of sentence only.
3. The main argument advanced by the learned counsel on the question of sentence is that the Sessions Court having exercised its discretion in awarding to the appellant the sentence of imprisonment for life, the High Court was not justified in interfering with that discretion and in enhancing the sentence to death. It is urged that the State Government had not filed any application for the enhancement of sentence and that also was a reason why the High Court should have been slow to interfere with the discretion exercised by the Sessions Judge.
4. It is undoubtedly true that it was primarily for the Sessions Court to decide whether the extreme penalty of death was called for in the circumstances of the case. But, unfortunately, the learned Sessions Judge did not take into consideration various relevant aspects of the matter while awarding the lesser sentence to the appellant. Prior to the birth of the appellant, his father had taken the deceased in adoption. About three years prior to the incident in question, the appellant's father had executed a deed of gift in favour of the deceased. The execution of the gift deed may have upset the appellant but in January 1972, when the murder was committed, that was a stale matter. The conduct of the appellant shows, that he was determined at all events to murder the deceased and if possible, some of the other members of the family, including his father. He first went to the house in the evening, asked some sort of questions to the deceased's wife and gave her a threat that he will soon finish her husband. He returned to the house at about 11 p.m. and started assaulting his father. When the father shouted for help and the deceased came to the rescue of the father, the appellant turned his attention to the deceased and attempted to attack him. The deceased shut himself up in the room, but the appellant banged on the door of the room and almost broke open the door. Thereafter the appellant chased his deceased brother over a distance of about 500 yards and gave him five stab injuries with a knife.
5. In these circumstances, we find it impossible to hold that the High Court was in error in enhancing the sentence from imprisonment for life to death. The circumstance that the State Government did not apply for enhancement of the sentence has no relevance.
6. Accordingly, we confirm the sentence of death and dismiss the appeal.