A.S. Bains, J.
1. This order will dispose of Murder Reference No. 7 of 1981 and Criminal Appeal No. 545-DB of 1981, filed by Ranjit Singh alias Roda.
2. Ranjit Singh alias Roda was convicted Under Section 303 of the IPC and sentenced to death for the murder of Ashok Kumar alias Shoki, by the learned Additional Sessions Judge, Chandigarh.
3. The appellant has a chequered history of crime. He was a Mess Contractor from Patiala. He was tried in a case FIR No. 117 of 1975, Police Station West, Chandigarh, Under Sections 148/302/ 149 of IPC along with one Madan Lal alias Maddi and others, but he was acquitted on May 13, 1976, by the learned Sessions Judge, Chandigarh. This fact is established by the evidence of P.W. 18 Pear Chand, Ahlmad of the Sessions Court. Again in a case F. I. R. No. 564 of 1978, Police Station South Chandigarh, the appellant was tried for the murder of one Ram Pal alias Kichhi by the learned Sessions Judge, Chandigarh, and was awarded a life sentence on March 6, 1979, which fact is also proved vide a certificate of life sentence, copy of which is placed on the record as Exhibit P. R. The present murder took place while he was undergoing life sentence in the aforesaid case for the murder of Ram Pal alias Kichhi, and was on parole on the date of the incident of murder.
4. The prosecution story, in brief, in the present case is that Gurdev Singh alias Deba met the deceased Ashok alias Shoki. aged about 26 years, in Sector 27, at about 6 P. m. on October 25, 1980. Both of them planned to contact Harinder Singh alias Happy P.W. 4 who runs a ready-made garments shop in Sector 31. Gurdev Singh and the deceased took a rickshaw and went to Harinder Singh alias Happy at his shop. Happy closed his shop and they all came to Sector 19, where they took some liquor and other eatables. After taking liquor, they went to Sector 27 for meals. Ashok alias Shoki deceased changed his mind and asked his com-panious Gurdev Singh alias Deba and Harinder Singh alias Happy p. Ws. to have a dinner in Sector 18. Then they hired a three-wheeler auto-rickshaw bearing No CHV 505 driven by Babu Lal alias Babli P.W. 7.
5. They reached in front of the Capital Guest House bearing No. 1515 at about 10 p.m. The deceased along with Gurdey Singh alias Deba P.W. 5 and Harinder Singh alias Happy P.W. 4 got down and went into the precincn> of the Guest House, one after the other. Ashok alias Shoki (since deceased) was ahead of them. Baldev Singh P.W. 3 its Manager, had already seen Brahmi co-accused (absconder) and appellant Ranjit Singh alias Roda, who had been waiting near the Kitchen of the Guest House. They had entered alone with two unknown persons from the back gate of the Guest House opening in Sector 21, and Brahmi and appellant Ranjit Singh alias Roda were waiting there, while the other two persons left before the arrival of the prosecution witnesses and the victim. Before the arrival of the prosecution witnesses and the victim Baldev Singh P.W. 3 had also served water to the appellant and Brahmi absconder, As soon as Brahmi and Ranjit Singh alias Roda appellant saw Ashok alias Shoki with his companions, Brahmi proclaimed 'Shoki as Giya, Rode as Jas' (Shoki has come, Rode should come) and Brahmi also proclaimed that they were going to avenge the murder of Maddi and raised a Lalkara 'Badla Lenge, Chhodenge Nahin, Shoki Ko mar Denge' (we will take revenge, would not spare, Shoki will be killed). Immediately, Brahmi absconder and the appellant took out long knives. The deceased and the p. Ws. started fleeing from there and in that attempt the deceased along with his companions came out of the main door of the Guest House. Harinder Singh alias Happy immediately boarded the three wheeler auto-rickshaw which had already been parked in the reverse order and was successful in escaping from the place. However, the deceased was waylaid near the residential Kothi No. 1514 on the road between kothis Nos. 1511 and 1513 on one hand and Kothis Nos. 1512 and 1514 on the other hand, near the Capital Guest House, After Ashok deceased was overpowered, he was given knife blows by the appellant and Brahmi co-accused absconder, one after the other, and they were successful in Riving at least 32 knife blows on various parts of his body, including eyes, chest, neck and head and removed his clothes, Baldev Singh P.W. Manager of the Guest House, witnessed the occurrence from the gate of his Guest House while Gurdey Singh alias Deba stood perplexed at a little distance and witnessed the occurrence. When blows were being given, one Shri Kuldip Singh P.W. 6 who was putting up at that time in Kothi No. 1514, came out of his house on hearing the alarm 'Baccho, Bachao' and he asked the appellant and his companion as to why they were killing the man, whereupon the appellant proclaimed 'As Brahmi Chaliye. Aapne Badlalal Liya Hai' (come on Brahmi, we have avenged the murder, let us go). The victim died at the spot. After causing injuries, the appellant and his co-accused made good their escape along with their weapons. Balbir Singh P.W. 8, brother of the deceased, was informed about the incident by Gurdev Singh alias Deba P.W. 5.
6. Inspector Krishan Kumar P.W. 22 recorded the statement of Baldey Singh P.W. 3 whom he met on the way when he was going to lodge the report. His statement is Exhibit p. H. on the basis of which formal P. I. R. Exhibit PH/1 was recorded at 11.30 P. M. The special report reached the Additional Chief Judicial Magistrate, Chandigarh, at 5.30 a. m. on Oct. 26. 1980.
7. P.W. 22 Inspector Krishan Kumar reached the spot and prepared the inquest report Exhibit P. G. on the dead body. The blood stained earth from underneath the dead body was taken into possession vide memo, Exhibit P. J. A button and cigarette end were also taken into possession from near the dead body vide memo. Exhibit PK. Bloodstained earth was also picked up from near the dead body and from the premises of the Guest House, vide Exhibits PL and PM respectively. The Serologist, to whom these were sent for chemical examination, reported vide his report Exhibit PFF, the blood t0 be of human origin.
8. The autopsy on the dead body was conducted by Dr. B. D. Chugh. Medical Officer, General Hospital, Sector 16, Chandigadh, P.W. 2, who found as many as 30 injuries on it. In the opinion of this doctor, the cause of death was shock and haemorrhage due to the injuries, which were ante-mortem in nature and sufficient to cause death in the normal course of events. In his opinion, the duration between injuries and death was within 20 minutes and between death and post-mortem was within 24 hours. Carbon copy of the post-mortem report is Exhibit P. F. The diagram showing the location of the injuries is Exhibits PF/1 and 2. The nature of the weapon used, in his opinion, was sharp.
9. The appellant surrendered before the Superintendent of Jail Shri R. D. Sharma, P.W. 1 on Nov. 1, 1980, one day after the expiry of the period of parole, for undergoing the remaining life sentence. The police made an application Exhibit P. A. for securing the production warrants of the appellant and he was ordered to be produced before the Chief Judicial Magistrate, Chandigarh. He was produced with muffled face. The Chief Judicial Magistrate directed the appellant to keep his face muffled till his identification parade had been held. Shri Hoshiar Singh, P.W. 16, the Executive Magistrate, arranged for an identification parade in the jail premises at Chandigarh. However, the appellant refused to participate in the identification parade in the circumstances in which it was being held by the Executive Magistrate.
10. At the trial, the appellant denied the prosecution allegations, but he admitted that he was already undergoing imprisonment for life in a murder case. He also admitted that he was on parole on the date of the incident of the murder. He, however, did not produce any evidence in defence.
11. The prosecution case rests on the testimony of P.W. 3 Baldev Singh, Manager of the Capital Guest House, P.W. 4 Harinder Singh alias Happy, P.W. 5 Gurdev Singh alias Deba and P.W. 6 Kuldip Singh. P. Ws. Baldev Singh and Gurdey Singh alias Deba have supported the prosecution version as given in the ealier part of the judgment. Harinder Singh alias Happy P.W. 4 and Kuldip Singh P.W. 6 have also supported the prosecution version, but not in its entirety. Baldev Singh P.W. 3, Manager of the Capital Guest House, is a natural witness as the occurrence commenced in his Guest House and ended near his Guest House. He has no animus against the appellant. He is also not under the influence of the police. Thus, we have no difficulty in accepting his testimony. Gurdev Singh alias Deba also was accompanying the deceased at the time of the incident. He has corroborated the Statement of Baldev Singh P.W. 3. The ocular account is corroborated by medical evidence of Dr. B. D. Chugh, P.W. 2. Kuldip Singh P.W. 6 partly supported the prosecution version. He is also a natural witness as the occurrence took place near his house No. 1514, where he was living, and he saw the appellant and his co-accused causing injuries from a distance of 12 yards. There is nothing against this witness also.
12. The motive for committing the murder is also proved. Ranjit Singh alias Roda appellant was a close associate of Maddi (deceased in. earlier case) and had a strong motive to avenge the murder in which Ashok alias Shoki (since deceased) had been acquitted.
13. There is no infirmity in the evidence of the prosecution witnesses as discussed earlier. Baldev Singh P.W. 3 is quite an independent and disinterested witness and has no motive to falsely implicate a person in a heinous crime like the present one. Even Kuldip Singh P.W. 6, who lived in the nearby bungalow, cannot be attributed any motive to falsely implicate the appellant Harinder Singh alias Happy P.W. 4, who accompanied the victim and Gurdey Singh alias Deba P.W. 5 to the Guest House also corroborated the earlier part of the prosecution version as to the visit of the victim to the Guest House in their company and that Brahmi and the appellant came there and the occurrence started. Thus, the prosecution evidence is consistent and cogent to prove the guilt of the appellant. The oral testimony of the prosecution witnesses is corroborated by the medical evidence, as observed earlier.
14. Mr. Sibal also challenged the Constitutionality of Section 303 IPC on the ground that it contravenes Articles 14 and 21 of Constitution that there is no nexus between the minimum sentence of death provided under this section and the object to be achieved and that no procedure is provided after the conviction for taking the life of the person. I do not find any merit in either of the contentions. So far as Article 14 of the Constitution is concerned, do not find that Section 303 of I. P. C in any manner, offends this Article. Section 303 of IPC is in the following terms:
303. Whoever, being under sentence of (imprisonment for life) commits murder, shall be punished with death.' From the reading of the aforesaid provision, it is plain that whoever commits murder while undergoing imprisonment for life, shall be punished with death. The object behind this provision seems to be that the convicts already undergoing imprisonment for life if commit murder should not be leniently dealt with and must be punished with death. It has created a separate class which can be created under the Constitution. Only in the same class, there cannot be any discrimination. Thus, in this class of convicts are the persons who are undergoing imprisonment for life and commit murder during that period. The object of sentence is not only to be reformative but is also to be deterrent and retributive. Such convicts who are hardened criminals and cannot be reformed are to be deprived of their lives because they are menace to the society. The ordinary life of the society is endangered by their conduct. Moreover, a convict undergoing life imprisonment all commits murder again during that period cannot be sentenced to imprisonment for life again, because that would be meaningless, for he has already been sentenced to imprisonment for life and second sentence of life imprisonment would be of no avail and that would be no sentence as the imprisonment for life is interpreted in Godse's case, and other similar cases as imprisonment for the whole of the remaining period of the natural life of a convict. It would mean that a convict would remain in ail till he dies. Thus, a convict already undergoing imprisonment for life cannot be sentenced to such imprisonment again, as life has only one tenure. It is, in this situation, that the legislature in its wisdom provided minimum sentence of death in such cases. Thus. I am of the view that there is no discrimination and there is a nexus between the provision of the minimum sentence of death and the object to be achieved. Only by imposing death sentence on such a convict can the object be achieved. Even in three States, namely, Michigan, North Dakota and Rhodae Island of the United States of America, death sentence is compulsorily provided for the persons whe commit treason or homicide while serving life imprisonment. in Encyclopedia Britannica. Volume, under heading 'Capital Punishment1 at page 812, it is stated as under:Those who favour retention of the death penalty argue that the possibility of being put to death must restrain some homicidally inclined individuals; that the alternative of life imprisonment is not less cruel and much more expensive; that no deterrent would be available to punish violent crimes committed by persons already serving life sentences, that elimination of the death penalty would so frustrate the vengeful impulses of many people as to lead to lynching and other private retributive killing; and that the practice of paroling prisoners sentenced to life imprisonment releases dangerous criminals upon society.
In Po Kun v. The King AIR 1939 Rang 124:40 Cri LJ 490) their Lordships of the Rangoon High Court, in similar situation held as under:
A sentence of transportation for life means a sentence of transportation for the whole of the remaining period of the convicted person's natural life.
If the sentence of transportation for life passed on a person is conditionally remitted by the Government Under Section 403, Cri, P. C, and the person is released, such person must still be deemed to be under sentence of transportation for life in spite of the fact that he is not actually under sentence or in a penal settlement.
Where, therefore, such a person after his release on remission, breaks the conditions on which remission was granted and commits an offence of murder, his case falls Under Section 303 and such person must be sentenced to death.
15. The Supreme Court has upheld the sentence of death Under Section 302 of IPC The courts may, in certain cases, award death sentance and may not award death sentence in other cases. There could be some scope for discrimination while exercising judicial discretion as no hard and fast rules can be laid down as to in which cases the death sentence is to be awarded and in which cases the imprisonment for life is to be awarded. But there is no scope for any discrimination Under Section 303 of IPC Here there is complete uniformity and equality that whoever commits murder while undergoing imprisonment for life will be sentenced to death.
16. The argument that no procedure is laid down and that no opportunity is given to a person who is convicted, for determining whether the sentence of death is appropriate and thus it violates Article 21 of the Constitution is devoid of any merit. Death sentence Under Section 303 of IPC follows a conviction. No formal procedure for producing evidence for recording of the sentence is provided as this is the minimum sentence to be awarded Under Section 303 of IPC and, Section 235(2) of Criminal P. C. will have also no relevancy. It is relevant only in the cases where the discretion is left with the Courts to award lesser sentence or more sentence, but Under Section 303 of IPC no judicial discretion is left and the Courts have to award death sentence. Hence, no procedure is needed. The whole trial takes place in the Court and every opportunity is given to the accused for cross-examining the prosecution witnesses and it is only where he is found guilty for the murder that the sentence of death is to be awarded Under Section 303 of IPC It is not that without recording the conviction he can be sentenced to death. The Courts in such cases have to see while recording the conviction, every circumstances and, if the prosecution case is doubtful the benefit is given, but once the Court finds the accused guilty, then no procedure is required as the minimum sentence provided is death. It is true that the right to live is a basic right and no law can deprive a person of his life unless it is reasonable and in the public interest and, as observed earlier. a hardened criminal is of no use to the society; rather he is a menace, if a person cannot abstain from committing another murder while undergoing sentence, it cannot be held that capital punishment in that case is unreasonable or not required in the public interest. Thus, I am of the view that Section 303 of IPC does not suffer from any vice on the ground that no procedure is laid down and that the legislature has deprived the Courts to exercise their judicial discretion. In Tagmohan Singh v. State of U. P. : 1973CriLJ370 , it was observed by their Lordships of the Supreme Court as follows (at p. 382 of Cri LJ):
The sentence follows the conviction, and it is true that no formal procedure for producing evidence with reference to the sentence is specifically provided. The reason is that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the court. Where counsel addresses the court with regard to the character and standing of the accused, they are duly considered by the Court unless there is something in the evidence itself which belies him or the public prosecutor for the State challenges the facts, if the matter is relevant and essential to be considered, there is nothing in the Criminal P. C. which prevents additional evidence being taken.
The Court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. AH such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an apportunity to address the Court. The only thing that remains is for the judge to decide on the guilt and punishment and that is what Sections 308(2) and 309(2) Cr.P.C. purport to provide for. These provisions are part of the procedure established by law. Hance the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21.
17. In Maru Ram v. Union of India : 1980CriLJ1440 . the constitutionality of Section 433A of CrIPC as inserted by Amendment Act of 1978, was challenged. This provision, provides actual detention in prison for full fourteen years of convicts, who could have been punished with death, but were sentenced to life imprisonment or whose death sentence was communted to life imprisonment. Section 433A of Criminal P. C. is in the following terms ;-
433A. Restriction on powers of remission or commutation in certain cases - Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted Under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.' Thus, from a reading of this provision it is plain that fourteen years of imprisonment is mandatory in two classes of cases (i) where the Court could have punished the offender with death but did not; or (ii) where the Court did punish the offender with death, but he survived through commutation to life imprisonment granted. It was held by the Supreme Court that Section 433A. is not beyond legislative competence of Parliament, Article 246(2) gives power to Parliament to make laws with respect to any of the matters enumerated in List III. It was also held that it was not violative of Article 20(1) of the Constitution, on the ground that it enlarges punishment. It was also held by the Supreme Court that it is Hot violative of Article 14 on the ground that it does not distinguish between the persons who reform and who do not. Precisely the same argument was canvassed in this appeal also. Their Lordships of the Supreme Court observed as follows:
Imposition of at least a 14-year term Under Section 433A for a murderer cannot be considered to be arbitrary, unusually cruel and unconstitutional as violative of Article 14. In the current state of things and ethos of society a very long term in prison for a murderer cannot be castigated as so outrageous as to be utterly arbitrary and violative of rational classification between lifers and lifers and as so blatently barbarous as t0 be irrational enough to be struck down as ultra vires. Even the submission that no penal alibi justifies a prisoner being kept walled off from the (food earth if, by his conduct, attainments and proven normalisation, he has become fit to be a free citizen, cannot spell unconstitutionality....The failure of imprisonment as a crime control tool and the search for non-institutional alternative in a free milieu, gain poignant pertinence while considering the mechanical exclusion of individualised punishment by Section 433A.' conjuring up the cruel magic of 14 years behind bars - where 'each day is like a year, a year whose days are long' as a solvent of the psychic crisis which is crimeogenic factor' blinking of blunt fact that at least after a spell the penitentiary remedy aggravates the recidivist malady. Penal humanitarianism and rehabilitative, desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategeies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.
18. Thus, I am of the firm view that Section 303 of IPC is not violative of the provisions of Articles 14 and 21 of the Constitution and the same is held to be] intra vires of the Constitution.
19. The learned Sessions Judge has given cogent reason and I do not want to burden the record in reproducing that reasoning. I find no ground to take a different view regarding the appraisal of the evidence. In my considered opinion, the prosecution has succeeded in proving the case beyond reasonable doubt. Accordingly, the conviction of the appellant is maintained.
20. For the reasons recorded, the appeal fails and is dismissed and the death sentence as recorded by the learned trial Court is confirmed,
C.S. Tiwana, J.
21. I agree.