Judgment:
B.C. Patel, J.
1. Appellant was tried by Additional City Sessions Judge, City Civil Court, Ahmedabad in Sessions Case No. 68/ 87, for offences punishable under Section 302 of the Indian Penal Code, Section 14(g)(v) of the Bombay State Reserve Police Force Act, 1951 and Section 66(1)(B) of the Bombay Prohibition Act, and has been convicted for aforesaid offences by an order dated 19th May 1988, and being aggrieved by that order, the present appeal is preferred. When the appeal was placed for admission on 20th July 1988 before this Court (Coram: G.T. Nanavati & I.C. Bhatt, JJ.), in exercise of its revisional powers, issued suo motu notice for enhancement of sentence against the appellant.
2. The appellant has been served with notice. On his behalf, Mr. M. C. Barot, advocate has appeared and for State, Additional Public Prosecutor Mr. S.R. Divetia has appeared.
3. Facts briefly leading to the present prosecution are as under:
Dattatrai Vitubha, constable of State Reserve Police Gr. III, who is examined as P. W. 6 moved the investigating machinery by a complaint dated 7-2-1987 Exh. 54. Complaint discloses that on 5-1-1987, they left Gondal for Ahmedabad. Head Constable Bhawarsing Kalyansing (deceased), constable Nirmalsing Ranjitsing P.W. 7, Sirajkhan Bauddinkhan (appellant) and Karansing were on duty in the area known as Chamanpura. On 6-2-1987, as Karansing was on leave, Dattatrai, the complainant, was asked to join duties in place of Karansingh. There is a Ran Basera (a dormitory for overnight for poor person of nominal charges) and these police personnels were accommodated in one room of the Ran Basera. Two persons were required to patrol the area while two were taking rest. Complainant Dattatrai and Nirmalsing were in one shift, while deceased Head Constable Bhawarsing and Sirajkhan, the appellant, were in another shift. On 6-2-87, between 20.00 hrs to 22.00 hrs. complainant and Nirmalsing discharged their duties and returned to Ran Basera. Deceased and appellant in their uniform with their rifles and cartridges left for duty and they locked the main door of Ran Basera from outside, the key of which was kept with Bhawarsing. The complainant and Nirmalsing were taking rest. Again they were required to go for duties at 24.00 hours. Deceased and appellant returned, opened the gate after unlocking, awakened them and thereafter, the complainant and Nirmalsing took their rifles and cartridges and left for patrolling. Brother of Bhawarsing was also there as a guest and was sleeping near bed of Bhawarsing. While on duty, complainant and Nirmalsing met some Home Guard personnel, rickshaw drivers and one Khodaji and were just talking. At about 00.50 hrs., they heard gun shots from Ran Basera and hence complainant and Nirmalsing ran towards Ran Basera. On reaching there, Nirmalsing opened the lock with the key which was with him. When they entered, they found the appellant carrying his rifle and cartridges, trying to escape by leaving the gate and he was caught hold there and then. On questioning, the appellant stated that by firing, he has killed Bhawarsing and his brother. There upon, complainant took the rifle and catridges from the appellant and proceeded towards the room where he found Bhawarsing and his brother in dead condition in a pools of blood. Appellant was taken in rickshaw to Civil police chowky, where telephone duty police constable was informed, who asked them to take the appellant to Shahibaugh Police Station. Therefore, the complainant and Nirmalsing took the appellant to Shahibaugh Police Station and produced the weapon and cartridges. These facts were recorded in the First Information Report by Inspector of Police, Shahibaugh Police Station. On receipt of the complaint, investigation commenced. Under a panchnama, rifle, 46 cartridges, which were in a cloth bag i.e. belt specially meant for keeping cartridges and 3 fired catridges were seized.
It was found that the appellant has consumed Alchohol. He was forwarded for medical examination to the civil hospital. Experts from the Forensic Science Laboratory were also called. On reaching the place, police officer prepared inquest panchnamas. Panchnama of scene of offence was also prepared. Bayonet, fired cartridge, blood stained clothes, pieces of fired bullets etc, were sized. Statement of Manager of Ran Basera was recorded. Hands of the appellant were washed by distilled water by expert. Investigating Officer recorded the statements of Sureshchandra and obtained the entries from the relevant register indicating issuance of arms and ammunitions. After completion of post-mortem, constable produced certain articles which were seized under a separate panchnama. That articles include pieces of fired bullet. On receiving the reports from the experts, appellant was charge sheeted in the Court of Metropolitan Magistrate, who committed the appellant to the Court of Session for trial.
4. On 1-5-1967, City Sessions Judge framed charge against the appellant to which appellant pleaded not guilty and contended that he is entirely innocent and has committed no offence. Prosecution examined witnesses to prove the charge against the appellant. On appreciation of evidence and after considering statement of appellant recorded under Section 313 of the Criminal Procedure Code and the submissions made by the learned counsel for the State as well as the defence, learned Addl. City Sessions Judge came to the conclusion that the prosecution has proved the case and convicted the appellant for an offence punishable under Section 302 of the IPC. for causing death of Bhawarsing and his brother Kesarsing and sentenced the appellant to suffer imprisonment for life. Appellant was also convicted for an offence punishable Under Section 14(g)(v) or in alternative 14(b) of Bombay State Reserve Police Force Act 1951 and sentenced the appellant to undergo R.I. for 14 years. The appellant came to be convicted for an offence punishable Under Section 66(1)(b) of the Bombay Prohibition Act and was sentenced to suffer R.I. for six months. The trial Court directed that all the sentences shall run concurrently. Being aggrieved by the aforesaid order of conviction, the present appeal is preferred. This Court has also issued notice for enhancement of sentence against the appellant.
(Paras 5 to 17 are omitted.)
18. From the evidence, it is very clear that the deceased Bhawarsing, complainant Dattatrai P.W. 6, Nirmalsing P.W. 7 and the appellant were all members of the State Reserve Police Force, within the meaning of the provisions of the Bombay State Reserve Police Force Act, 1951 (hereafter referred to as the Act). They were reserve police officers as per the Act. Bhawarsing was on active duty. They were posted for patrolling in the area for the purpose of maintaining public peace and protection of property. From the evidence, it is also suggested that in some of the areas of the city there was curfew and in certain areas there was no curfew. Complainant has stated that when he was discharging his duties at Dariapur, there was no curfew. Nirmalsing P.W. 7 has also stated that there were riots in the city of Abmedabad at the relevant time and they were posted for bandobast at Chamanpura area. Thus, it is I clear that they were specifically posted for maintenance of public peace and protection of property. Sub-clause (a)(ii) of Section 2 of the Act defines active duty, which reads as under:
'2. (a)(ii). The duty to take all adequate measures for the extinguishing of fires or to prevent damage to person or property on the occasion of such occurrences as fires, floods, earthquakes, enemy action or riots and to restore peace and preserve order on such occasions.'
Section 10 of the Act is 'deeming' clause and Sub-sections (1) and (2) of that section reads as under:-
(1). Every reserve police officer shall for the purpose of this Act be deemed to be always on duty in the State of Gujarat and any reserve police officer and any member or body of reserve police officer may, if the State Government or the Inspector General of police so directs, be employed on active duty for so long as and wherever the services of the same may be required'.
(2). Every direction issued under sub-sec. (1) shall specify that the duty which any reserve police officer or any member or body of such officers is directed to be employed shall be deemed as active duty for the purpose of this Act'.
Now, turning back to the evidence, it is very clear that the deceased, complainant, appellant and P.W. 7 Nirmalsing were members of the Reserve Police Force within the meaning of the Act. Evidence also makes it clear that on account of riots, they were posted in Ahmedabad in a particular area, i.e. Chamanpura and they were required to take all adequate measures for extinguishing fire or to prevent damage to person or property. In the event of fire, riots etc, they were required to preserve peace and order and obviously for this purpose they were patrolling the area in rotating shift of every two hours and they were required to move on foot for patrolling. Section 14 of the said Act makes provision for punishment for more henious offences, which reads as under:
'14. More henious offences - Every reserve police officer who,-
(a) xx xx xx xx xx xx(b). uses, or attempts to use criminal force to, or commits an assault on his superior officer knowing or having reason to believe him to be such, whether on or off duty; or
(c) to (f) xx xx xx xx xx xx xx(g) while on active duty,-
(i) to (iv) xx xx xx xx xx(v) uses criminal force to, or commits an assault on, any person whom he has not any reason to believe to be in arms against the State and against whom it is his duty to act, or without authority breaks into any house or other place for plunder or any illegal purpose, or wilfully and unnecessarily plunders, destroys or damages any property of any kind; or'
Thus, it is very clear that in view of Section 10 of the said Act, appellant, for the purpose of the said Act, by virtue of the said deeming provision, was on duty in the State at the material time when he committed the offence. Even if a reserve police officer who uses of even attempts to use criminal force or commits an assault on his superior officer, then the said Act, provides that he can be imprisoned for a term which may extend to 14 years. If there is an offence as per Section 352 of the Penal Code, then the punishment is either imprisonment for a period which may extend to three months or with fine which may extend to Rs. 500/- or both.
From this it clearly appears that with a view to maintain strict discipline in para military force, the legislature thought it fit to see that strict view of the matter is taken even for offence of criminal force. This aspect is to be kept in mind particularly for the purpose of sentencing the appellant who was a reserve police officer, who committed offences and that too against his immediate superior officer and against another innocent person.
(paras 19 and 20 are omitted)
Mr. Divetia, learned Additional Public Prosecutor submitted that since this Court (Coram: G.T. Nanavati & I.C. Bhatt, JJ.) has issued notice for enhancement of sentence at the initial stage and in his submission the facts are such that the learned trial Judge ought to have imposed extreme penalty as provided under the law. In the instant case, the learned Judge, in para 20 of the judgment, held that the accused is guilty of the offences and thereafter adjourned the matter for hearing on the question of sentence. Public Prosecutor in charge of the case pointed out that this is a case of brutal murders and is a rarest of the rare cases. According to the submission made before the trial Court, the appellant was a SRP constable on duty, deceased Bhawarsing was Head Constable on duty and because deceased Bhawarsing slapped the appellant, appellant used his service rifle and killed Bhawarsing and his innocent brother Kesarsing. It is very clear from the record that the appellant was a member of the paramilitary Force and the offence if taken lightly, there will not be any discipline in the Forces. Learned Judge in para 23 of the judgment has observed that:
'It is true that this is a case of circumstantial evidence. However, in my view the circumstantial evidence led in this case is of utmost satisfaction and more reliable than direct evidence. The accused is a man of young age, is married and has a child and has no antecedence meaning thereby there is nothing to show that he is involved in criminal activities or he behaved with indiscipline while in service. I am also of the view that the offence is very serious considering the discipline which is required in para-military forces but because the accused is a man of young age, I do not find it proper to award extreme penalty and therefore I am of the opinion that he should be sentenced to life imprisonment.'
Considering the position of law, we are of the view that the learned Judge has seriously erred in taking into consideration the fact that the accused is a young man, married and is a father of a child as grounds for awarding lesser punishment. Learned Judge was required to consider facts and circumstances of the case and was required to arrive at a conclusion whether the act of the accused is such that it would invite extreme penalty? The learned Judge was required to consider from that angle. The only question required to be considered by the trial Court was, whether the facts and circumstances of the case are such from which it can be said that murder has been committed after previous planning and it involves extreme brutality or whether the offence was committed under the influence of extreme mental or emotional disturbances. The Court has to find out that there are special reasons for choosing between the life and death; the murder was henious, astrocious, cruel or that the accused's intentional act had created a great risk of serious bodily harm and death to more than one person. The Court should have seen that an innocent person, brother of Bhawarsing, who had nothing to do with any dispute if at all existed, was murdered when he was sleeping. The trial Court ought to have seen that the offender, armed with deadly weapon, committed the murder of a reserved police officer who was on active duty. In the instant case, the appellant was a police constable serving in the State Reserve Police Force. He was provided with rifle and cartridges only for discharging his duties and he was required to take adequate measure for extinguishing of fire or to prevent damage to person or property on the occasion of such occurrence such as fire and riots and he was required to restore peace and preserve order on such occasions but instead of that, he has used the rifle against Head Constable and his innocent brother who were sleeping and by firing from point blank range, committed murders. Learned Judge ought to have considered that the appellant was a police officer and was required to respect the law. It is expected that police personnel should be have with greater sense of responsibility and; more particularly when he is armed with weapon. He should have shown respect to the law. However in the instant case, the appellant behaved just the other way round. It is suggested in the evidence that deceased Bhawarsing had quarrel with the appellant. Manager of Ran Basera stated that the appellant was slapped. Position would have been altogether different if at the time of incident of slapping the appellant used his fire arm, then even for the sake of saying that for this trivial matter he was provoked and it may be said that the appellant acted under a sudden impulse in a grave fit of rage. If on the spot reacted with the wrong doer, one could have said that appellant was incensed by the treatment awarded to him. If deceased Bhawarsing was attacked at that time, matter would have been different. But he did nothing and thereafter, they both went together for discharging their duties and there was no indication of any reaction of that incident on the appellant. Deceased Bhawarsing and the appellant went together for patrolling and discharged their duties for two hours as usual. However, it appears that he has kept the vengeance in his mind, waited for about an hour very calmly and with calculated thoughts. When both the deceased were sleeping, aimed them. Appellant used his rifle and fired shots in quick succession so that deceased can get no opportunity. Appellant used his weapon after about 50 minutes and obviously thinking that complainant and Nirmalsing would be away and may not interfere, and got ready to escape but, however, did not succeed. As prosecution has led cogent and convincing evidence and when two cold blooded murders were committed, the trial Judge ought to have given adequate reasons to reject the plea of the Prosecutor. There was no reason for the appellant to attack the deceased persons all of a sudden, who were sleeping. Inquest panchnama and other evidence indicates that both the deceased were in their bed rolls and their legs were found straight. There is no symptom of any resistance or scuffle whatsoever. Should there have been scuffle at least with one of the deceased, the resultant effect could have been noticed. If one tried to intervene or one had scuffle and thereafter fire arm was used, then the body of the deceased could never be found on the bed roll itself in a flat condition. Thus, it is very clear that the appellant fired when both were sleeping. There is no evidence to show that any of the deceased acted in such a way so as to provoke the appellant. The act of appellant is a deliberate act. Appellant has not given any reasonable explanation for the missing four cartridges, as only 46 cartridges were seized while he was given 50. Looking to the nature of injury on each, in the ordinary course of nature it was sufficient to cause death and both the deceased died on the spot in no time, i.e. instantaneously, which is clear indication of brutual murder of two innocent persons. In these facts, it was submitted by the learned Public Prosecutor that young age of the accused should not come in the way of imposing maximum penalty of death sentence. It is submitted that the participation of the appellant is clearly proved and by murdering two persons, the appellant has committed heinous crime and is nothing but a cruel act and it would fall within the rarest of the rare cases and relying upon a reported judgment of the Hon'ble Supreme Court in the case of Sevaka Perumal etc. v. State of Tamil Nadu reported in : 1991CriLJ1845 , learned Addl. Public Prosecutor submitted that in the instant case also, death penalty should be awarded and he relied on paras 8 and 9 which read as under (at page 1849 of Cri LJ):
'8. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruine. Protection of Society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice of order should meet the challenges confronting the Society. Friedman in his 'Law in changing society' stated that 'State of criminal law continues to be as it should be a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation of sentencing process be stern where it should be, and tampered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. For instance a murder committed due to deep seated personal rivalry may not call for penalty of death. But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence. In Mahesh v. State of M.P. : 1987CriLJ1073 , this Court while refusing to reduce the death sentence observed thus:
'It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon'.9. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats. If the courts did not protect the injured, the injured would then resort to private vengeance. It is therefore the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.'
(paras 21 to 23 are omitted)
24. It clearly appears from the evidence on record that the learned Judge has accepted the evidence and convicted the appellant, However, sentence is unduly lenient or is manifestly inadequate is the question as the notice for enhancement of sentence is issued by the Court. For this purpose, it is necessary to refer to observations made by the Honourable Supreme Court in the case of Kodavandi Moideen v. State of Kerala, : 1973CriLJ671 :
'It is no doubt true that the question of a sentence is a matter of discretion and when that discretion has been property exercised along accepted judicial lines, an appellate Court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the fact of the judgment. If a substantial punishment has been given for the offence of which a person is found guilty, after taking due regard to all the relevant circumstances, normally there should be no interference by an appellate Court. On the other hand, interference will be justified when the sentence is manifestly inadequate or unduly lenient in the particular circumstances of a case. The interference will also be justified when the failure to impose a proper sentence may result in miscarriage of justice.'
There is also another case on the similar line, reported in : [1954]1SCR145 (Dalip Singh v. State of Punjab), Reading these decisions, it clearly appears that interference will be justified when the sentence is manifestly inadequate or unduly lenient in the particular circumstance of a case and would also be justified when there is failure to impose a proper sentence, which may result in miscarriage of justice. This principle, as well as the principle ennuciated in a reported judgment in the case of Sevaka Perumal v. State of Tamil Nadu reported in : 1991CriLJ1845 which we have referred to earlier, is also required to be kept in our mind. The learned fudge was requested to impose maximum penalty by the Public Prosecutor, However, in para 23 of the . judgment, the learned Judge has given reasons for not imposing extreme penalty of death, which we have already referred to earlier. Therefore, the reasons which are referred to above and discussed in the judgment by the learned trial Judge can never be accepted as mitigating circumstances, nor can any of them be accepted for not awarding the extreme penalty.
25. A question was raised that we should hear the accused as he is not represented by his lawyer, Learned advocate for the appellant submitted that this Court (Coram : K.G. Shah & K.P. Vyas, XT.) (one of us) in Criminal Appeal No. 8 of 1988 and others referred to hereinabove, while allowing the appeal of the State for enhancement of the sentence, heard the accused on question of sentence and therefore in this matter also, the appellant should be heard.
26. Section 377 of the Criminal Procedure Code pertains to appeal by State Government against sentences. Sub-clause (3) of this section reads as under:
377(3). 'When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.'
Section 401 of the Code read with Section 397 of the Code are relevant provisions, as in the instant case, High Court has issued suo motu notice for enhancement of sentence while exercising that power. Sub-clause (2) of Section 401 reads as under:
401(2). 'No order under this section shall be made to the prejudice of the accused or other persons unless he has had an opportunity of being heard either personally or by pleader in his own defence.'
From this, it was submitted that the accused should be heard.
27. Notice of enhancement of sentence was served upon the appellant, and that too in the language which is understood by the appellant. Therefore, it is clear that the Court has issued notice to the appellant and he has been provided with an opportunity of being heard either personally or through advocate of his own choice for his defence, A copy of the notice has been served on the appellant and original is on the record of the appeal. Appellant has signed the same in token of receipt of the same. Not only that, but he requested through Jail Authorities under his own signature that as he is not in a position to engage a lawyer, he should be provided a lawyer at the State cost. Accordingly, Mr. M.C. Barot has been appointed to defend the case. Once the notice is issued, then reasonable opportunity is given to him to show cause against enhancement of sentence. What law requires is that before enhancing the sentence, notice should be given for enhancement of sentence and thereby he is given an opportunity to defend the case. Section 235(2) is the - relevant section wherein mandate is there to hear the accused on the question of sentence, if the accused is convicted. This section has been interpreted by the Hon'ble Supreme Court in the case of Rajendra Prasad v. State of U.P. reported in : 1979CriLJ792 . The Hon'ble Supreme Court has observed as under (at page 818 of Cri LJ):
'If on the other hand, the public prosecutor states that the case calls for extreme penalty prescribed by law, the Court would be well advised to call upon the Public Prosecutor to state and establish, if necessary, by leading evidence, facts for seeking extreme penalty prescribed by law. Those reasons and the evidence in support of them would provide the special reasons according to the State which impel capital punishment. It would be open to the accused to rebut this evidence either by submissions or if need be, by leading evidence. At that stage the only consideration relevant for the purpose of determining the quantum of punishment would be the consideration bearing on the question of sentence alone and not on the validity of the verdict of the guilty. After considering the submissions and evidence, it would be for the Court with its extreme judicious approach and bearing in mind the question that extreme penalty is more an exception, to determine what would be the appropriate sentence.'
Thus, it is very clear that the parties are required to produce relevant material before the trial Court in case when the Prosecutor informs the Court that the State as Prosecutor is of the opinion that the case is one where extreme penalty is called for, as is done in the instant case. It was open to the accused-appellant also to lead necessary evidence for pointing out to the Court to determine the quantum of punishment. In the instant case, the learned Public Prosecutor, from the evidence pointed out as to how the case is demanding extreme penalty. Defence, except pointing out the age of the accused and members of his family has not placed any other material on the record. Therefore, as the matter is carried in appeal, the appellate Court will have to decide the matter on the material which is placed on the record. In the instant case, from whatever the material placed on the record, this Court will have to decide the adequacy of punishment as well. In a given case Court may permit to lead evidence while hearing appeal. The submission to hear the appellant has, therefore, no merit. One has to read Sections 386, 397 and Section 401 together and when conviction appeal as well as the proceedings in which notice for enhancement of sentence is issued are heard together, it is in compliance with the mandate of the legislature and the accused is not required to be heard personally, as is required to be heard at the trial at the stage of conviction, as per Section 235(2) of the Code. In the case of Bachansing v. State of Punjab reported in : 1980CriLJ211 , wherein the appellant filed an appeal against the conviction and sentence Under Section 304, Part I read with Section 149 of the IPC. and the State filed an appeal against acquittal Under Section 302 of the IPC. A revision petition Under Section 401 of the Criminal Procedure Code for enhancement of sentence was also filed. All these matters were heard together by an express order of the Court. The High Court passed an order dismissing the appeal of the accused and while enhancing the, sentence observed that the State appeal for enhancement of punishment was partly accepted. Against that judgment, appeal was preferred before the Hon'ble Supreme Court and it was argued that the High Court has committed error of law in enhancing the sentence of the accused without giving a reasonable opportunity of showing cause against such enhancement and without allowing to plead for acquittal or for reduction of sentence as contemplated by Sub-section (3) of Section 377 of the Criminal Procedure Code. In para 9 of the judgment, the Hon'ble Supreme Court has observed as under (at page 213 of Cri LJ):
'But, even otherwise, there is no merit in the grievance of the accused that they were not given the opportunity of showing cause . against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence. The opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence. That in fact was the subject matter of their appeal.'
In the instant case, the accused has preferred appeal against conviction and the Court has issued notice for enhancement of sentence. He is given an opportunity to plead for his acquittal and also to show cause against the enhancement of sentence and therefore there is no merits in the submission that the accused should be heard before enhancing the sentenced. It is required to be appreciated that the Court is exercising its power of revision under Section 401 of the Criminal Procedure Code read with Section 397 of the Code. It is permissible for this Court to exercise power of appeal under Section 386 for enhancement of sentence and, if that is being done, we do not find any justification in the submission made by the learned counsel that the accused should be heard, as notice with regard to enhancement is already served to the appellant. Even in Criminal Appeal No. 8/88 decided by this Court on 6th March 1992, the Court has thought it fit to hear the accused but the court has not referred to any provision contained in the code.
(paras 28 to 31 are omitted)
18-9-1992.
32. There was not the slightest provocation from the side of the deceased. The appellant has committed the heinous and cruel crime. The reasons are:--
(1). The appellant and deceased Bhawarsing were working together on active duty as State Reserve Police Officers and the deceased had no enmity whatsoever with the appellant.
(2). Deceased Kesarsing had no enmity with the appellant.
(3). Even accepting at the best that for a trivial matter the appellant was slapped by deceased Bhawarsing, the matter which was to be forgotten but with a calculated mind, without showing any reaction, patrolled with the deceased for two hours and even on return, after awaiting for about an hour, when the deceased Bhavarsing and Kesarsing were fast asleep, the appellant used his weapon, viz. 0.303 rifle and fired four shots from point blank range on helpless victims. Rifle was given to him for the purpose of protection of public and property.
(4). The appellant was a police constable and was required to act in accordance with law but has just acted the other way round.
(5) There was no reason to commit murder of the brother of Bhawarsing, viz. Kesarsing, who was a stranger to the appellant.
(6). The reasons of young age of the appellant as recorded by the trial Court for imposing lesser sentence is no reason in view of the settled principles of law.
In view of the above reasons we are convinced beyond any manner of doubt that the appellant is guilty of committing murder of two innocent persons and therefore should have been strictly dealt with, by imposing the extreme penalty. However, in the case of Machhi Singh v. State of Punjab reported in : 1983CriLJ1457 , the Hon'ble Supreme Court has observed that (at page 1466 of Cri LJ) :
'Before opting for the death penalty, the circumstances of the 'offender' also requires to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception....A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.'
Considering this principle, the Court will have to take into consideration as to what were the circumstances of the offender, from the evidence placed on record. If there is a mere suggestion in the cross examination or for one or the other reason there is admission by the witnesses indicating that the wrong doer has committed the crime after intoxication would be altogether a different thing. However, in the instant case, it clearly appears that the appellant had consumed alcohol and it is the prosecution version that the appellant, when produced before the Investigating Officer immediately after the occurrence, there was smell of alcohol from the appellant. Ranchhqdbhai P.W. 16 Investigating Officer in terms has stated that when appellant was produced, his mouth was smelling of alcohol. Rameshbhai Marwadi P.W. 10 has stated the same thing and which is recorded in panchnama Ex.35. Dr. Sulo-chanaben who examined the appellant has deposed before the Court that at about 4.35 a.m. (i.e. after about four hours) the appellant was examined and he was found conscious and not under the influence of alcohol. Moreover, the report which is produced on the record at Exh. 17 indicates that in the blood of appellant, the percentage of alcohol was O.1495%, which would raise a presumption that the appellant has consumed alcohol. From the room in question where the incident took place, no liquor bottle is seized and if that be so, we have to infer that when the appellant and deceased were patrolling, the appellant must have consumed alcohol. The prosecution has not led any evidence to show by scientific method indicating that before particular hours the appellant must have consumed alcohol. We infer that it may be any time when the appellant and deceased were patrolling. Therefore, it is equally possible that the appellant must be under the influence of alcohol when the cruel act was committed by him. As stated earlier, Dr. Sulochanaben has examined the appellant at 4-35 a.m. and at that time he was conscious and not under the influence of alcohol. This should not have been the position at about 12.55 midnight when the act was committed. It is equally possible that with the passage of time, when he was examined, the Doctor might have found the appellant as conscious person and not under the influence of alcohol. Thus, considering this aspect of the matter, we are clearly of the view that when the accused committed the crime in question, he was under the influence of alcohol. Therefore, it can be said that his mental faculty was not in order and that would be a relevant circumstance, which is required to be considered while deciding the question of sentence. However, it does not mean that there was incapacity in him to form the required intention. We have stated earlier that consumption of alcohol and the resultant condition of the appellant would not be a defence. But surely, it should be a factor to be considered while deciding the question of sentence. The fact that the appellant was slapped, together with the fact that he subsequently consumed liquor, both considered together would amount to extreme mental or emotional disturbance and if under this circumstances the appellant has committed the crime, then in our opinion, this should be a factor to be considered.
33. In case of Pal Singh v. Emperor reported in AIR 1917 Lahore 226 : (1917 (18) Cri LJ 868), Division Bench of Lahore High Court, on a reference, set aside the capital sentence passed on Pal Singh and in lieu thereof sentenced him to transportation for life. After considering Section 86 of the Penal Code, the Court has observed (at page 230 of AIR):
'The only provision even remotely in point in Section 86, IPC. and though the appellants have not themselves pleaded drunkenness, the case for the prosecution has been from the outset that the appellants were more or less intoxicated at the time when they assaulted the deceased.
In the circumstances, we feel that this aspect of the case must be duly considered and this notwithstanding that we have held that Section 300 (fourthly), IPC. applies.'
The Court held the appellants guilty for an offence punishable Under Section 302 of IPC. and while considering the question of sentence, the Court observed:
'Section 86, IPC, attributes to a drunken man the knowledge of a sober man when judging of his action, but does not give him the same intention (Nga Tun Bawv. Emperor (1912) 17 IC 800). This knowledge is the result of a legal fiction and constructive intention cannot invariably be raised. In the absence of an intention to cause death or such bodily injury is likely to cause death, it may reasonably be urged that drunkenness or a state of intoxication would form a sufficient excuse for not exacting the extreme penalty of the law'.
Again, in another death reference heard by the Division Bench of Patna High Court in the case of Judagi Mallah v. Emperor reported in AIR 1930 Patna 168 : (1930 (31) Cri LJ 243) the learned judges considered similar aspect. They also considered the case of Director of Public Prosecutions v. board, ((1920) AC 479) and held that the case attracts the third conclusion, which reads as under:
'The Third conclusion is:
That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts'.In my opinion the present case comes under the purview of this third conclusion. We have nothing to show that the accused was incapable by reason of drunkenness to form the intent necessary to constitute the crime.'
In that case, the learned Judge held that extreme penalty is not called for. The death of the deceased was caused in the course of drunken brawl, and considering the facts and circumstances, the Court reduced the sentence from a sentence of death to a sentence of transportation for life. In a separate judgment, the other learned Judge observed:
'Although drunkenness by itself does not excuse the commission of an offence, this along with other circumstances may well be taken into account in inconsidering the nature of the penalty to be inflicted. In view of all the circumstances of the case, I agree with my learned brother that time is a fit case in which the accused should be sentenced to transportation for life.'
One more similar incident has been reported in 1953 Cri LJ 434 (Rajasthan) in the case of Kanji v. State, decided by the Division Bench of Rajasthan High Court (Jaipur Bench). There, the theory of accidental firing was not acceptable in view of the evidence led by the prosecution. Appellant did not produce any evidence to show that on account of scuffle his gun went off accidentally. However, appellant produced evidence indicating that he had been drinking since the morning on that day. Even some of the prosecution witnesses also admit that drinking had been going on since morning on that day and the appellant took part in it. In view of evidence, the Court held that the 'deceased boy' met his death by shot fired by the appellant at him. If a person takes the risk of shooting at another the act would be imminently dangerous act which must, in all probability, cause death or such bodily injury as is likely to cause death. In view of these facts, the trial Courts view that the appellant was guilty under Section 302 was confirmed. However, on the question of sentence, the Division Bench, after considering the aforesaid decision of Lahore High Court as well as Patna High Court, observed that:
'He is, however, responsible for the natural consequences of his acts and as we have already said, he is clearly guilty under Section 302 of the IPC. But, in view of the circumstances, we think that ends of justice would be met by awarding the lesser penalty in this case.'
The learned Judges dismissed the appeal, set aside the sentence of death and sentenced transportation for life.
34. In the instant case, the prosecution case itself is that the appellant was smelling of alcohol and, therefore, in our view, this would be the mitigating circumstances to be taken into consideration. Considering the effect of mitigating circumstances and aggravating circumstances, we are of the view that this is not a case which calls for extreme penalty and sentence imposed by the learned trial Judge would meet the ends of justice.
35. In the result, Criminal Appeal No. 469 of 1988 filed by the appellant is dismissed. While we do not for a moment agree with the reasons recorded by the trial Judge for not awarding the extreme penalty, we, however, for the reasons discussed by us in detail hereinabove, confirm the sentence of life imprisonment imposed upon the appellant by the trial Court.
Resultantly, in Misc. Criminal Application No. 1591 of 1988, (suomotu) notice for enhancement of sentence stands discharged.