G.P. Singh, J.
1. The judgment in this appeal shall also dispose of Criminal Appeals Nos. 211 and 215 of 1973 as also Criminal References Nos. 5, 6 and 7 of 1973.
2. On 6th July 1972 there was an armed robbery in the Gun Carriage Factory Post Office, Jabalpur, at about 5-30 p. m. in which three postal employees, namely, Sitaram Chouksey, V. N. Choudhary and Durga Prasad Mishra, lost their lives. The appellants in these appeals were tried by the Second Additional Sessions Judge, Jabalpur, in Sessions Trial No. 100 of 1972 for offences under Sections 302, 449 and 394 read with Section 397 of the Indian Penal Code. By the judgment delivered on 20th February 1973, Pravin Kumar Gupta (appellant in Criminal Appeal No. 171 of 1973) has been convicted under Section 302 for committing murder of V. N. Choudhary and under Section 302 read with Section 34 of the Penal Code for committing murder of Sitaram Chouksey and Durga Prasad Mishra. For these offences he has been sentenced to death. He has also been convicted under Sections 449 and 394 read with Section 397 of the Penal Code and sentenced to rigorous imprisonment for seven years on each count. The sentences of imprisonment are to run concurrently. Vijay Simon and Reuben Pradeep (appellants in Criminal Appeals Nos. 211 and 215 of 1973) have been convicted under Section 302 read with Section 34 for the murder of Sitaram Chouksey, V. N. Choudhary and Durga Prasad Mishra. They have been sentenced to death for these offences. They have also been convicted under Sections 449 and 394 read with Section 397 of the Penal Code and have been sentenced to rigorous imprisonment for seven years on each count. The sentences of imprisonment are to run concurrently.
3. The G. C. F. Post Office is located in the G. C. F. Estate. The evidence shows that near the post office there are no buildings and towards at least one side of the post office there are some bushes and a small hill. The Dak and money are taken to the Head Post Office, Jabalpur, from the Factory Post Office in the evening. The post office has got, for this purpose, two vans; one is referred to as the mail van and the other cash van. The Dak is collected by the mail van and the cash by the cash van. On 6th July 1972, on which date the incident took place, the cash van had broken down and the Dak and the cash were both collected in the mail van at about 5.10 p. m. Ganesh Prasad (P. W. 2) was the driver of the mail van with whom were Narayan Prasad (P. W. 3), the Cash Overseer of the Post Offices, and Ramnihor Mishra, (P. W. 4). a Police Constable. When this mail van was standing in front of the post office and Dak and cash were being collected from the post office and taken to the van, the appellants were seen together near some bushes. When the mail van moved after loading the Dak and the bag containing the cash, the appellants were seen near the road.
4. Exhibit P-289 is a plan of the place of occurrence which is drawn on scale. This plan was prepared by Jamna Prasad (D. W. 3) who is Assistant Foreman incharge of the Drawing Section in the factory- The plan was prepared on the date of the incident itself. A look at this plan will show that the post office consists essentially of a hall. Counters have been erected in this hall to divide it into two portions. From the side of the counters there is a half door through which one can enter the other side of the hall where the Post Master and other postal employees sit for doing their work. The quarter of the Post Master is adjacent to the post office and there is a door from which one can enter the quarter from the post office. At about 5-30 p. m., when the incident took place, there happened to be four postal employees in the post office, namely, Sitaram Chouksey, the Post Master, V. N. Choudhary, Money Order Clerk, Durga Prasad Mishra, Savings Bank Clerk, and Abdul Hafiz Khan (P. W. 1), Telegraph Clerk. All of them were busy in their work when they suddenly noticed the appellants. The events thereafter took place according to the statement of Abdul Hafiz Khan (P. W. 1) as follows. The appellant Reuben Pradeep whipped out a pistol and placed it near the chest of Sitaram Chouksey and repeatedly demanded money. Chouksey replied that cash had already been sent to the Head Post Office and there was no cash in the post office. The appellant Pravin Kumar Gupta asked Reuben Pradeep to shoot at once. Then Pravin Kumar Gupta lifted a weight and hurled it on the head of V. N, Choudhary who fell on the ground and started crying. Reuben Pradeep and Gupta both had knives and they stabbed Chouksey with the knives. The third appellant Vijay Simon was trying to get at Durga Prasad Mishra and Abdul Hafiz Khan (P. W. 1) and they were defending themselves and trying to ward off Vijay Simon with the help of chairs. Durga Prasad Mishra jumped over the counter with a view to escape, but Simon got him in the gallery and hit him with a knife on which Mishra shouted that he had been hit. At that time Abdul Hafiz Khan (P. W. 1) got the opportunity of escaping through the door which led to the Post Master's quarter. He closed the door, but he was hearing the noises made by the appellants. Abdul Hafiz Khan (P. W. 1) thereafter, after jumping the wall of the court-yard of the Post-Master's quarter, went to some nearby residence from where he telephoned the Police Station, Civil Lines. The message that was given on phone is Ex. P-l. The Police Sub-Inspector immediately came Upon the scene where the first information report Ex. P-2 was recorded. Sitaram Chouksey and V. N. Choudhary were found dead. It was suspected that Durga Prasad Mishra may be alive and he was rushed to the hospital where he was declared dead. Photographs of the place of occurrence were taken, as earlier stated the plan of the place of occurrence was got prepared and the investigation started.
(After discussing evidence in paras. 5 to 29 the judgment proceeds).
30. From a discussion of the evidence, we have, therefore, no hesitation in accepting the evidence of Abdul Hafiz Khan (P. W. 1) that the three appellants raided the post office and caused injuries to Sitaram Chouksey, V. N. Choudhary and Durga Prasad Mishra resulting in their death. We are satisfied that the identity of the appellants as the three assailants who committed the crime is established beyond reasonable doubt. There can also be no doubt about the common intention of the appellants in the manner the crime was committed. The primary intention was, no doubt, to commit a robbery but they were also prepared and intended to commit murder in case of resistance, as it turned out. The cash had already been sent to the Head Post Office by the mail van and, therefore, the Post Master Sitaram Chouksey was unable to give any cash to the appellants. The appellants, however, thought that he was not speaking the truth and then they started assaulting Sitaram Chouksey and other postal employees who were present in the post office. They caused fatal injuries to Sitaram Chouksey, V. N. Choudhary and Durga Prasad Mishra. It was sheer good luck that Abdul Hafiz Khan (P. W. 1) could escape through the post-master's quarter which is attached to the post office by a connecting door. We have already referred to the injuries found on the bodies of the victims. On all the three victims there is only one injury on each, which proved to be fatal. In case of Chouksey and Choudhary, it was the injury on the head that proved to be fatal and in case of Mishra it was the injury in the abdomen that proved to be fatal. The learned Additional Sessions Judge has held all the accused-appellants guilty under Section 302 read with Section 34 of the Penal Code for the three murders. In case of appellant Pra-vin Kumar Gupta, the learned Additional Sessions Judge is of opinion that it was he who lifted the weight and hit V. N. Choudhary on the head and, therefore, he was liable for the murder of Choudhary under Section 302 without the aid of Section 34. In our opinion, however, it would ' be unsafe to hold simply on the evidence of Abdul Hafiz Khan (P. W. 1) as to which injury was caused on the bodies of the victims by which accused. In the confusion that must have been created by the entry of the three appellants and when Abdul Hafiz Khan (P. W. 1) was trying to save himself from the assault, it may not have been possible for him to see clearly as to which particular injury was caused by which accused. There is, therefore, a room for doubt in holding that it was Pravin Kumar Gupta who caused the fatal injury to V. N. Choudhary. We, therefore, hold that all the accused-appellants, including Pravin Kumar Gupta, are guilty under Section 302 read with Section 34 of the Indian Penal Code for causing the death of Sitaram Chouksey, V. N. Choudhary and Durga Prasad Mishra. We also affirm the finding of the learned Additional Sessions Judge that all the three appellants are also guilty under Sections 449 and 394 read with Section 397 of the Penal Code.
31. Then comes the question of sentence. Section 367(5) of the Code of Criminal Procedure, before its amendment by Act 26 of 1955, provided that if the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, the Court shall in its judgment state the reason why sentence of death was not imposed. The law then was that sentence of death was the normal sentence for the offence of murder and the lesser sentence of imprisonment for life could be imposed only when the Court found extenuating circumstances in favour of the accused and these circumstances had to be stated in the judgment. After the amendment of the Code in 1955, the Court is not obliged to record reasons for not imposing the sentence of death and the question of sentence is left to the discretion of the Court. This discretion, in our opinion, has to be exercised not according to the notion that existed when the Penal Code was enacted but in accordance with the progressive spirit of the times. The amendment of Section 367(5) of the Code of Criminal Procedure in 1955 itself suggests that the Parliament intends that the sentence of death should not be imposed except in extreme cases. The purpose of punishment is protection of society 'by deterring potential offenders, by preventing the actual offender from committing further offence and by reforming and turning him into a law abiding citizen;' (Salmond, Jurisprudence, 12th edition p. 94). The sentence of death is only deterrent and preventive but sentence of imprisonment for life in addition to being deterrent and preventive also gives a chance to the criminal to reform himself after his release on orders of the Government which usually takes place after he has been in the prison for 15 to 20 years depending upon the remissions earned by him. It may also be noticed that 'the available statistics do not justify an absolute conclusion regarding the value of death penalty as a deterrent; the evidence, such as it is, shows a relatively unimportant relation between the murder rate and the death penalty;' (Principles of Criminology by Sutherland and Cressey, 6th edition, p. 295). However, it may be assumed that professional criminals such as dacoits and hired assassins cannot be deterred by a sentence of imprisonment, for to this class of criminals imprisonment is merely an occupational hazard. The sentence of death in such cases, may, therefore, be justified on the ground that imprisonment for life will not be an adequate deterrent. But when the accused has no past history of being a criminal and is young and when imprisonment for life will be an adequate deterrent to the class of persons to which he belongs, it would be normally a proper exercise of discretion to impose the lesser penalty of imprisonment for life and to give him a chance to reform and to become a responsible member of society. This conclusion is reinforced if we look to the fact that the State is now taking steps to rehabilitate even the professional dacoits who are accused of many murders. Further, instances are not wanting where youthful offenders accused of murder who were treated leniently by this High Court have settled down after release from prison as useful citizens. It is true that in exercising the discretion in the matter of imposition of sentence the motive, the nature of the crime and the manner in which it was committed have also to be taken into account but the age and antecedents of the accused should play an important I part where the question is whether he should be visited with death penalty.
With these general observations let us now turn to the facts of the instant case. It is undenying that three innocent persons were killed by the appellants in a brutal manner for a base motive of robbery. But the appellants have no past criminal record, they are between 19 to 23 years in age and two of them are students of B. Sc. class in a college. Given a chance there is possibility that the appellants may reform themselves, for persons of the class to which the appellants belong indulge into crime influenced and misguided by the usual crime stories that we now get in cheap novels and motion pictures. The sentence of imprisonment for life is a sufficient deterrent for a potential criminal of this class. Further, in this case all the appellants are being convicted under Section 302 with the aid of Section 34 as it is not possible to hold definitely as to which particular accused caused the fatal injuries found on the bodies of the victims. Having regard to all these factors, we feel that interests of justice will be fully served by substituting the sentence of imprisonment for life for the sentence of death.
32. The appeals are partly allowed. We uphold the conviction of all the appellants for the murder of Sitaram Chouksey, V. N. Choudhary and Durga Prasad Mishra under Section 302 read with Section 34 of the Indian Penal Code. The sentence of death passed by the trial Court for these offences is set aside and instead the appellants are sentenced to imprisonment for life. The convictions and sentences of the appellants under Sections 449 and 394 read with Section 397 of the Indian Penal Code are upheld. All the sentences shall run concurrently. Criminal References Nos. 5, 6 and 7 of 1973 are rejected.