Jagjit Singh, J.
(1) MOHD. Rafi alias. Mohd. Rafiq was tried by an Additional Sessions Judge on the charge that he had on November 17, 1972 at Katra or Gali Marwari, Qasabpura, near Sadar Bazar, Delhi, had committed murder intentionally and knowingly by causing the death of Badru-din. The trial Judge found him guilty of the offence of murder and on December 1, 1973 sentenced him to death under section 302 of the Indian Penal Code. Against his conviction and sentence Mohd Raft has filed an appeal while the learned Additional Sessions Judge has made a reference, under provisions of section 374 of the Code of Criminal Procedure, for the sentence of death being confirmed.
(2) BADRU-DIN deceased was about 43 years of age and was a meat seller by profession. He was also chairman of the meat-sellers' Association.Admittedly they were also residents of the same locality, i.e. the Qasabpura.
(3) The prosecution case was that Mohd Rafi had borrowed Rs. 50 from the deceased. On November 17, 1972 at about 10 p.m. in Gali Marwari, Qasabpura, Mohd Rafi and the deceased were present when Mohd Rafi was abusing and threatening the deceased. Riazuddin, Safiquddin and Mahiuddin, also residents of Qasabpura and meat sellers by profession, happened to come there and by intervening managed to separate Mohd Rafi. and the deceased. Those persons took Mohd Rafi to his house near that place and on returning from there enquired from the deceased as to what the quarrel was about. They were told by the deceased that he had given Rs. 50 as loan to Mohd Rafi and on his demanding the money back the latter started quarrelling with him. In the meantime Mohd Rafi again came to the place where they were talking with the deceased and was carrying a knife or Chhuri in his right hand. With the knife he at first gave a blow on the back of the deceased and then a second blow on the chest as soon as the deceased turned his body. After giving those blows Mohd Rafi ran away brandishing the knife in his hand to scare away any person who may have thought of pursuing him.
(4) Near the place where the deceased received injuries there happened to be lying a cot on which a mattress had been spread. Riazuddin,Safiquddin and Mahiuddin gave support to the deceased and made him lie on the cot. Almost immediately thereafter they took the deceased in a taxi to the Willingdon Hospital. Dr. R. K. Gupta, Chief Medical Officer, examined the deceased at about 10.15 p.m. and found his condition to be extremely poor. Necessary measures to revive him were taken but without any success and he died at 10.19 p.m. on the same day.
(5) On the day of the occurrence Babudin, son of the brother of the deceased's mother, reached his house in Qasabpura at .10.10 p.m. and there came to know that Badrudin had been injured by being given knife-blows. On that he went to the place of occurrence and on being told that Badrudin had been removed to Willingdon Hospital proceeded to Police Station Sadar Bazar Delhi, at a distance of about two furlongs, and at 10.20 p.m. lodged a report (Exhibit Public Witness 13/A). In that report it was mentioned by him that he had learnt that Mohd Raft, son of Mohd lbrahim. had caused injuries with a Chhuri to his cousin (father's sister's son) Badrudin, son of Chhota, resident of Mohalla Qasabpura and that Badrudin had been taken to Willingdon Hospital for treatment.
(6) The report lodged by Babudin was recorded by Sub-Inspector Rattan Singh of Police Station Sadar Bazar and a copy thereof was given to Sub-Inspector Partap Singh for purposes of investigation.
(7) SUB-INSPECtor Partap Single reached the Willingdon Hospital at 10.30 p.m. (on November 17, 1972). There he learnt that Badrudin had already died. He then recorded the statement of Riazuddin who was present in the hospital and sent that statement to the Police Station for registration of a case against Mohd Raft under section 302 of the Indian Penal Code.
(8) MOHD. Rafi could not be arrested till November 20, 1972. On that date Head Constable Suraj Singh of Police Station Kotwali, Meerut, along with a constable, was on traffic duty at Hapur bus stand. At the bus-stand the head-constable arrested a man who had a knife. The name given by that person was Qayamuddin son of Satruddin of Jhansi. In that report (Exhibit Public Witness 12/A) which was recorded in police station Kotwali, Meerut, regarding the arrest of that person and which was proved during the trial by head-constable Suraj Singh (P.W. 12) it was also mentioned that during the course of arrest the arrested person received some injuries. Those injuries were described as an injury and a bluish mark on the calf of the left leg and swelling injury on the wrist-joint of the right hand.
(9) It appears that Babudin came to know that the person arrested at Meerut was no other than Mohd Rafi. He informed Sub-Inspector Pa-tap Single The Sub-Inspector then made an application (Exhibit P.W. 18/E) to the Additional District Magistrate (Judicial), Meerut staling that it had been reported to him that the person arrested as Qayamuddin by the Police was Mohd Rafi and that the said person was wanted in a case of murder and he may, thereforee, be allowed to join him in investigation. The Additional District Magistrate allowed Sub-Inspector Partap Singh to interrogate the person who had been arrested on November 20, 1972. On verifying that the arrested person was no other than Mohd Rafi the investigating officer obtained warrants and Mohd Rafi was brought to Delhi.
(10) On December 5, 1972 Mohd Rafi was alleged to have made a disclosure statement (Exhibit Public Witness . 16/A) to Sub-Inspector Partap Singh in the presence of Mohd Qureshi and Azizulrahman regarding his throwing an 'iron Chhuri' on the western side of the grave yard. Pursuant to that statement, a knife or Chhuri (Exhibit P/1) was recovered and was sealed at the spot. On being sent for Chemical and serological examination it was found to be stained with human blood. The blood group, however, could not be determined.
(11) According to Dr. Bharat Singh, who conducted the post mortem examination, the two injuries found by him on the dead body of Badru-din could be caused by the knife or Chhuri Exhibit P/l. The injuries noticed by him were an incised stab wound over the front of left side chest 2' lateral to mid-line and 2' above and medial to left nipple, placed obliquely with its upper angle on the lateral side, and an incised stab wound over the back of left side chest just medial to upper angle of scapula placed obliquely with upper angle on the medial side. On exploration of the injuries it was found that injury No. 1 had passed into the chest cavity through the third intercostal space by cutting the third and the fourth ribs and had caused a cut 1/2' x 1/10' on the heart over the right ventricle. The other injury (Injury No. 2) bad also passed into the chest cavity by cutting the third rib on the back and had cut the lung to the extent of 11/2 x 1/4 x 1'. In the opinion of Dr. Bharat Singh both the injuries were anti-mortem and were separately or in combination sufficient to cause death in the ordinary course of nature.
(12) The defense version of Mohd Rafi was that he was at Meerut on the day of the occurrence and had been falsely implicated. Regarding that plea of alibi no evidence was produced. Constable Nafe Singh was, however, examined as a defense witness to prove a Roznamcha report dated September 20, 1972 recorded by Assistant Sub-Inspector Bal Mukand at the instance of Badru-din deceased. According to that report he had filed eviction proceedings against his tenant, Shamsuddin son of Faizu, and that the tenant had threatened to kill him with a knife on October 9, 1972 and that there was danger to his life at the hands of the tenant and the tenant's sons named Islamuddin and Quayamuddin. The other defense witness examined in the case was Islamuddin, son of Samsuddin, who deposed that Badru-din was his landlord and had started civil litigation against him and that after the death of Badru-din the litigation was being conducted by Mustakim, brother of the deceased. He added that he did not know as to who had committed the murder of Badru-din as he was not present at the place of the occurrence.
(13) Obviously the object in examining Nafe Singh and Islamuddin as defense witnesses was to provide a basis for the suggestion that there being litigation between the deceased and his tenant Samsuddin it was possible that the injuries which resulted in the death of Badru-din may have been caused either by the tenant or the sons of the tenant or by all of them.
(14) During arguments of the case the learned counsel for Mohd. Rafi, however, did not press the contentions that the appellant was not present at the time of the occurrence or that the murder may have been committed by Samsuddin and/or his sons Islamuddin and Qayamuddin. It seems that the learned counsel considered it futile to urge those contentions as no evidence, whatsoever, regarding the plea of alibi was produced and in the face of direct evidence regarding the injuries having been caused by the appellant he considered it nut worth-while to submit that merely because there was litigation between the deceased and his tenant the tenant and/or his sons may have attacked the deceased and thereby caused his death. What was urged before us was that though the injuries which resulted in the death of the deceased may have been caused by the appellant yet that was in exercise of the right of self-defense in a fight, after the appellant had sustained some injuries at the hands of the deceased.
(15) During the trial not even a suggestion was made to any of the witnesses who deposed to have seen the occurrence about the appellant acting in exercise of his right of self-defense or the deceased causing any injuries to the accused. The story of self-defense was tried to he built merely on the Roznamcha report (Exhibit P, 12/A) of Police Station Kotwali, Meerut, regarding the arrest of Qayair.uddin. who turned out to be no other than Mohd. Rafi, from a bus stand at Mccrut on November 20, 1972. As already stated according to that report the said Qayamuddin had received during the course of his arrest injuries which were merely bluish injury and a mark on the calf of the left leg and a swelling of right hand wrist-joint.
(16) At no time it was the case of Mohd Rafi that the injuries found on his person at the time of his arrest in Meerut on November 20, 1972 had in fact been received by him during any fight with Badrud-din deceased on November 17, 1972. 'There is nothing to show that the statement contained in the Roznamcha report about injuries having been received during the course of the arrest was not correct.
(17) Thus there is not an iota of evidence from which the plea of the appellant's learned counsel regarding the appellant having acted in exercise of his right of self-defense may be spelt out. On the contrary there is direct and reliable evidence to show that the appellant had caused the death of Badru-din after lic brought a knife or Chliuri from his house and gave to the deceased two blows with that knife.
(18) We have carefully considered the evidence of Riazuddin, Safiquddin and Mahiuddin (P. Ws. 1, 2 and 3). Their evidence was that they had first seen Mohd Rafi. having a quarrel with Badru-din and even though they intervened and took Mohd Rafi to his house still he almost immediately thereafter returned with a knife to the place where he had earlier been abusing Badruddin and gave two knife blows to Badruddin on vital parts of his body.
(19) It was urged by the learned counsel for the a.ppellant that presence of Riazuddin and Safiquddin at the lime of the occurrence was improbable as both of them stated to have seen a picture in Odeon cinema in the show which started at 6.30 p.m. Mention was also made of the fact that producing used cinema tickets by Riazuddin to the police on November 19, 1972 was rather indicative of an attempt to create false evidence and, thereforee, makes the testimony of both those witnesses un-reliable. It was further argued that normally no one retains used cinema tickets and in any event the tickets should have been handed over by Riazuddin at the time his statement was recorded by Sub-Inspector Partap Singh (P.W. 18) in the Willingdon Hospital.
(20) We are unable to agree with the submissions made by the appellant's counsel. It is not necessary that a person who goes to sec a cinema show must destroy the used l.ickcts immediately after the show is over. When one enters the auditorium of a cinema house tickets are checked and the checked tickets arc required to be retained till the end of the show for sub:-.equcnt checking. if necessary. Used tickets may remain with the person who had them even after the cinema show is over, sometimes for days. The statement of Riazuddin and Safiquddin about their going to Odeon cinema and seeing the cinema show which started at 6.30 p.m. cannot, thereforee, be disbelieved merely because Riazuddin retained the used cinema tickets and did not destroy those immediately after the cinema show was over.
(21) Riazuddin and Sufiquddin cannot as well be dubbed as un reliable witnesses because Riazuddin produced the cinema tickets to she investigating officer on November 19, 1972. It is quite likely that Riazuddin did not attach any importance to the used cinema tickets winch were with him and, thereforee, did not hand these over to the investigating officer at the time when his statement was recorded in the hospital. It is in the statement of Sub-inspector Partap Singh that it was on the evening of November 18. 1972 that he told Riazuddin to produce the used cinema tickets and that thereafter the tickets were produced before him on the next day at about 3 or 4 p.m. It follows that the used cinema tickets were produced by Riazuddin only after the investigating officer thought of asking for those being produced. That the cinema tickets so produced (Exhibits P-4 and P-5) had been issued For the 6.30 p.m. cinema show on November !.7. 1972 stands fully established from the evidence of the booking-clerk, Ashok Kumar (P.W. 5).
(22) Riazuddin and Safiqudin had gone together to scc the cinema show on November 17, 1972 and after the show was over they travelled in a three-wheeler scooter up to Gali Marwari, Qasabpura. A three wheeler scooter is a fairly fast conveyance and there was nothing improbable in their reaching the place of occurrence by about 10 p.m. and to he in a position first to scc Mohd Rafi abusing the deceased and afterwards seeing him causing injuries, which proved fatal.
(23) The third eye-witness in the ease, Mahiuddin, deposed that about 10 p.m. he had gone from his house for buying a Pan and on reaching Gali Marwari saw the occurrence. He being a resident of that locality his coming out of his housc at that hour of the night was in no way His presence was mentioned by Riazzuddin and Safiquddin. We are satisfied that the occurrence was also seen by Mahiuddin besides Riazuddin and Safiquddin and that their testimony is reliable. There are no material discrepancies in their statements.
(24) Another thing which goes to lend support to the prosecution version is recovery of a knife (Exhibit P/1), having blood stains of human origin on it, in consequence of information given by Mohd. Rafi on December 5, 1972, when interrogated in presence of Mohd Oureshi and Azizulrahman. The contention of the learned counsel turn the appellant that Mohd Oureshi and Azizulrahman (P. Ws. 16 and 17) are false witnesses is without any force. Azizulrahman accompanied by Mohd Qureshi had gone to police station to enquire about Urfan, son of Atar-ul-Rahman. As stated by Azizulrahman the father of the child was living in the same house in which he was residing and as the child had been lost so he went to the police station along with Mohd Qureshi. They found the lost child in the Police Station and while they were still there the appellant made the disclosure statement which led to the recovery of a blood stained knife. As stated by Dr. Bhart Singh the injuries found on the body of the deceased could have been caused with that knife.
(25) Mohd Qureshi and Azizulrahman cannot be held to be false witnesses because regarding the lost child no entry was made in the police record. It was not shown to us how making any such entry was necessary. On the other hand Sub-Inspector Partap Singh explained that if no one comes to the police station for claiming such a child then the child has to be sent to the missing persons squad and it is for that squad to further deal in the matter.
(26) From the evidence produced in the case there can be no doubt about the guilt of the appellant. He caused the death of Badru-din deceased by bringing a knife from his house and giving two fatal blows on the back and front side of the chest. As already discussed above the injuries were not caused in exercise of any right of selfdcience. The conviction of the appellant for the offence under section 302 of the Indian Penal Code was. thereforee, fully justified. The question of sentence awarded to him. however, requires consideration.
(27) The learned trial Judge awarded the sentence of death as according to him 'the extreme sentence, is the normal sentence'. He also took the view that the sentence to be awarded should be 'retributive' and. thereforee, the sentence of death was the appropriate one in the circumstances of the case.
(28) After the amendment of section 367(5) of the Code of Criminal Procedure, by the Code of Criminal Procedure (Amendment) Act, 1955, the assumption that the sentence of death is the normal penalty for murder while imprisonment for life -is the exception which has to he justified for sonic reasons is not tenable. With the substitution of the old sub-section (5) of section 367 of the Code of Criminal Procedure the question of proper sentence under section 302 is to be decided not on any assumption of that nature but by keeping in view all the circumstances of a case. The theory that the punishment awarded should be retributive has not been accepted in this country. Normally the punishment awarded should be as moderate as it is consistent with the object aimed at, the law indicating the gravity of the offence by maximum penalty and the court has to judge whether the offence committed falls short of the maximum degree of gravity and if so to what extent. In a recent judgment, Ediga Anamma v. State of Andhra Pradesh (Criminal Appeal No. 67 of 1972 decided on 11-2-1974). Krishna lyer. J., while delivering judgment of the Supreme Court observed that in contemporary India, 'the via-media of legal deprication of life being the exception and long deprivation of liberty the rule fits the social mood and realities and the direction of the penal and procedural laws'.
(29) In the present case it is not known how the dispute between the deceased and the appellant had started before the three eye-witnesses had reached the scene of the occurrence. They of course mentioned that the deceased did tell them that on his asking Mohd Rafi to return Rs. 50 the latter started abusing him. Even if what the deceased told them was correct still that did not eliminate the possibility of the deceased himself having used some strong language when he found that the appellant was not inclined to pay back the loan. In the circumstances the sentence of life imprisonment, in our opinion, would he the appropriate sentence to be awarded in this case.
(30) For the reasons given above we decline the reference for confirmation of the sentence of death and accept the appeal to the extent that the sentence of the appellant for the murder of Badru-din is altered from death to that of imprisonment for life. The conviction of the appellant under section 302 of the Indian Penal Code is, however, maintained.