B.P. Beri, J.
1. By this judgement dated the 13th April, 1968, the learned Additional Sessions Judge, Dholpur has convicted Vijai Bahadur, Editor of 'Bedharak', for the murder of Surajbhan, Editor of 'Lal Nishan', and sentenced him to a term of imprisonment for life and further to two years rigorous imprisonment for possesssing an unlicensed revolver. Aggrieved by that judgment. Vijai Bahadur appeals and the State prays for the enhancement of his sentence of life imprisonment to one of death.
2. In the town of Bharatpur two news papers 'Lal Nishan' and 'Bedharak' were edited by Surajbhan and Vijai Bahadur respectively. The relations between these editors were clearly inimical and through the medium of these papers they expressed their deep hostility against one another in unmistakable, if also in equally unedifying, language.
3. On 25-4-1966 between 8-30 and 9 P. M. Surajbhan was walking in Loha Bazar, Bharatpur, and when he was near the shop of Kishanlal, he was riddled with six revolver, shots in quick succession by Vijai Bahadur and died on the spot. Reports from these gun shots attracted the shopkeepers one of them Badri Prasad saw a man resembling Vijai Bahadur running, another Mangilal saw him near Suraj Bhan with a pistol in his hand and thereafter running. Vijai Bahadur while running collided against a boy in the lane and then disappeared. Latter in the night at about 11 P. M. Vijai Bahadur went to an Advocate's house presumably to consult him. Surajbhan and Bharatpur's Superintendent of Police were not on good terms and, therefore, the Inspector General of Police deputed Shri Kashi Prasad, Deputy Superintendent of Police, Criminal) Investigation Department, Jaipur, to investigate the cage, He arrived in Bharatpur on 26-4-1966. He got examined the body of Surajbhan, which had six wounds of entry and two of exit mostly in thoracie region by 38 cartidges and died on that account. Four bullets were found deposited in his body, one was recovered from the fold of vest and, one from a nearby drain. On interrogation Vijai Bahadur gave information to the Police that he could get the revolver and empties recovered and pursuant to this information, under Section 27 of Indian Evidence Act one revolver of 38 bore with' six chambers for bullets was recovered from a niche in the meat of Kumber fort, Bharatpur, and six empties of 38 bore were collected from the garbage heap near Post Office. They were sent to the Ballistic Expert, who found that from the firing pin mark that the recovered empties were fired by the recovered revolver and that the bullets recovered from the dead body of the deceased Surajbhan and from the vest-fold and nearby drain were of 38 bore could be fired by the revolver recovered at the instance of the accused. After investigation the Police submitted a report to the Court of the Munsiff Magistrate, Bharatpur, who after preliminary enquiry committed Vijai Bahadur to face his trial before the Sessions Judge, Bharatpur, who transferred the case to the Court of the Additional Session's judge, Dholpur for trial. The prosecution examined 22 witneses to prove its case. Vijai Bahadur in his statement before the trial court denied the allegations against him. He pleaded ignorance also of certain allegations and added that because he had written an article against the Bharatpur police the case had been concocted by it against him. He, in defence, examined 4, witnesses, whose evidence need not be referred to because in the course of long arguments before us neither party referred to it. The Court examined two witnesses of its own. One was Mr. Suraj Ban, the Superintendent of Police and the other was Sub-Inspector police Abhimanyu, The learned Additional Sessions Judge in his long judgment has closely considered every link against the appellent and convicted and sentenced him as already indicated.
4. From the evidence of Dr. B. P. Jangid PW 18 Medical Jurist in the General Hospital, Bharatpur, it is proved that he performed the postmortem examination of Surajbhan (32) on 26-4-1966 at 7-30 A.M. His death had occurred within 24 hours. He had; (1) oval wound 1' X ' muscle deep on the right anterior axillary line 3' above the cartal margin. The direction of the wound was upward. After X-Ray a bullet was recovered on dissection (2) Circular wound of half inch diameter and chest cavity deep on the back of chest, 1'--away to the left of the vertebral column ( wound of entrance) at the level of 8th rib which was fractured. Dissection of the wound showed the track of the wound to pass through the lower lobe of the left lung, then ruptured the left ventricle of the heart and came out through the abdominal wall below the last sterne-costal junction on right side. The size of the wound was 1' X '' ( Wound of exit ). Margins of the wound on posterior side Were inverted and those on the anterior side were uverted (3) Circular wound of 'diameter and thoracic cavity deep with inverted margins below the junction of last left rib and, the sternum. The dissection showed the track of wound to pierce the diaphragm and coming out through a wound 1' X ', 1' below and lateral to the entrance wound of injury No. 2. The margins of the Wound were everted. (4) Circular wound of ' diameter and chest cavity deep 1' below, lateral to the entrance wound of injury No. 3 the margins were inverted. The track of the wound was directed upwards, laterally and posteriorly. Bullet No. 3 as shown in X--Ray film was removed from the wound. (5) Circular wound ' X ' by muscle deep on the left side of the vertebral column, 2' away from it, at the level of 5th rib. Dissection of the wound was done and bullet No. 4 as shown in X-Ray film was removed. The direction of the wound was irregular and the margins were inverted (6) Circular wound of ' diameter and addominal cavity deep on the mid-axillary line on left side below the costal margin with inverted margins. The dissection of the wound led to the left kidney, rupturing it at the upper pole. Bullet No. 5 as shown in X-Ray film was taken out from the site.
5. Before dissection an X-Ray was taken and it showed 5 radio opaque shadows similar to bullets in the chest region. One bullet fell down while removing the vest and 4 were recovered from inside the body. The injuries were ante-mortem and homicidal and were sufficient to cause death in the ordinary course of nature. His death was caused due to shock and haemorrhage. He has proved the X-Ray plates. The clothes of the deceased were blood soiled and were found by the Serologist to be soiled with human blood. Dr. Jangid further testified that 5 jacketted bullets were recovered by him. The 'Banyan' worn by the deceased Surajbhan (Ex 10) had 7 holes in blood soiled area of the garment. Mr. O.C. Chatterji, learned counsel for the appellant, did not contest that Surajbhan died as a result of gunshot wounds on the night of the 25th April, 1966. We are wholly satisfied that Surajbhan met his death by gun-shot wounds which he received at the hands of another person and that we need not pursue this subject any further.
6. Mr. Chatterji, learned counsel for the accused, challenged that the prosecution has not been able to prove that it was Vijai Bhadur who fired the shots killing Surajbhan. He argued that while there is evidence to show that there was bad blood between the accused and the deceased, it is equally evident that the deceased and the local police were enemical and thus the evidence adduced against the appellant, urged the counsel, is not incompatible with his innocence. The appellant's identity has not been proved; the witnesses produced are unreliable and witnesses who could have been easily produced have not been produced. The evidence of recovery of the revolver and empties is the result of repeated questioning and was therefore, tainted. In any case it does not conclusively fasted the guilt to the appellant, who is entitled to acquittal.
7. Mr. C.L. Agarwal on behalf of the prosecution urged that the best evidence has been produced and the recovery fastens the guilt to the accused.
8. Mr. M.D. Purohit, learned Deputy Government Advocate, argued that it was fit case in which death penalty should have been awarded.
9. Before we examine the evidence relating to motive it would be proper to consider the evidence of witnesses who had seen Vijai Bahadur in Loha Bazaar on the night of the incident.
10. Mangilal (PW/19), aged 28, a contractor by occupation, has deposed that he knew Surajbhan, Editor of 'Lal Nishan''. On 25 4-1936, while going to cinema he was passing through Loha Bazar around 8. 30 P.M. When he was near a bangle merchant's shop, he heard the reports of 3-4 explosions at his back and when out of curiosity he turned he heard the words 'Hai Mar Gaya', by a man falling down. At a distance of few feet from the falling min stood vijai Bahadur with a pistol in his one hand and a greenish bag in the other. Then Vijai Bahadur ran past him. The place from where the ''Pataka' sound came was 20-25 paces away from the witness and when Vijai Bahadur ran past him he was two and a half cubits away from him The witness then went up to the man who had fallen and he identified him to be Surajbhan. The witness was acquainted with Vijai Bahadur for many years and had seen him some 50 times, Vijai Bahadur according to Mangilal ran into Ramjilal Dentist's lane which opens in Loha Bazar Many people gathered round Surajbhan, who appeared to the witness as dead.
11. The evidence of Mangilal was assailed by the appellant's learned counsel on the ground that he resided half a mile away from Loha Bazar and is merely a chance witness. He does not even remember the name of the picture he was proceeding to see. It was also urged that Mangilal was examined by the Police on 28.4.1966 and this fact damages his evidence. We have read the evidence of the witness closely. He is a resident of Bharatpur and lives only half a mile away from Loha Bazar. We are not prepared to characterise him as a chance witness. His presence in Loha Bazar at that hour was nothing unusual or unexpected. If he is unable to recall the name of the picture he was going to see it is merely a matter of attaching .importance to the titles of the pictures. Neither from the witness nor from the investigation officer Kashi Prasad any enquiry has been made as to why the witness could not be examined earlier. We, therefore, attach no significance to this circumstance. He is unconnected with Surajbhan and Vijai Bahadur end is an independent and reliable witness, who had seen a man falling down with a cry of anguish and and another person nearby him with a revolver in his hand and then ruunning from that point passing by the witness in proximity. The man with the revolver is the appellant Vijai Bahadur. The man who fell down was Suraj Bhan who was later found to have died of of gun shot wounds. In our opinion Mangilai's evidence convincingly connects the appellant with the crime.
12. Badri Prasad (PW/8) aged 35 years, had a cloth shop in Loha Bazar. At about 8.45 P M. after closing his shop he was on his way towards Ganga Mandir when he heard reports of explosion. He turned round atonce and observed a person falling down in front of Kishen Chand's shop on the stone paved footpath. He also perceived that some person resembling appellant Vijai Bahadur was running away from the place where the person had fallen. The running man had a pistol like weapon in his hand and he ran into Ramjilal Dentist's lane Vijai Bhadur lives in that lane. The witness identified in identification proceedings and in Court the pant, which the running man was wearing at the time. When he reached the point where the man had fellen, he found him to be Surajbhan. The witness then cried: 'Surajbhan is deed. Vijai Bahadur killed him'.
13. The learned counsel for the appellant urged that Badri Prasad's evidence dees not link the appellant with the crime. It was a running man whom he identified when only his back was visible. The witness was examined by the Police on 28-4-1966. We have been taken through evidence of Badri Prasad. He is an independent shop-keeper of loha Bazar. He knew Vijai Bahadur for 4--5 years and he was no stranger to him. The fact that while uttering the words that Surajbhan is dead he also said that Vijai Bahadur had killed him is of considerable significance. When his impressions of the running man were fresh, his utterance that it was Vijai Bahadur who had killed Surajbhan had a natural spontaniety which seals it with an impress of reliability. We are unable to call him a 'cooked up' witness, because he is a shop-keeper of the locality; he has deposed faithfully what he observed without trying to say that the running man's face was that of Vijai Bahadur and his examination by the Police on 28-4-1966 does not in our opinion detract from his dependability.
14. Ghanshyam Das ( PW/16), aged about 25 years, is a distributor of J. B Mangharam Co. and had his shop in loha Bazar, Bharatpur. It was about 8.45 P. M. when he was saying his prayers gun-shot reports distracted his attention. He looked out and saw Vijai Bahadur running towards Jama Masjid when he passed by the shop of the witness, His eyes followed Vijai Bahadur for about 50 paces when he was running. There was electric light on the street and so alto in some shops. He had kdown Vijai Bahadur for about 10-12 years. He stepped out of his shop and saw 5-6 persons having collected in front of Kishen Chand's shop, some, 30-40 paces away from his shop. He went to Kishen Chand's shop and saw Surajbhan lying on the road, bleeding and unconscious. Badri Prasad ( PW/8 ) was saying that Vijai Bahadur had killed Surajbhan.
15. Mr. Chatterji criticised his evidence on the ground that he was some 37 feet away from a running person and could not have identified him. There is a divergence in the words which he had heard, viz. 'Mar Gaya' and 'Mar Diya'. Further he did not state anywhere that it was Vijai Bahadur who had killed Surajbhan and therefore his evidence does not connect the appellant with killing.
16. There is no force in any one of these contentions. The distance of 37 feet is merely an estimate. Even if it is exact, then there were street electric lights besides the lights which emanated from the shops in the Loha Bazar. Vijai Bahadur was known to the witness for the last many years. His vision kept track of the running Vijai Bahadur for some 100 feet and when he states that it was Vijai Bahadur who was running we have no reason to distrust him. He is an independent shop-keeper against whom no bias has been even suggested. The discrepancy in the words uttered is an honest lapse of memory and we attach no significance to it. His admission was: 'It is for the first time that I tell here that Vijai Bahadur has killed. I did not disclose this anywhere previously, because I was not asked specifically on this point by any body.' This is correct. Even in his examination-incheif in the trial court he has no where said that Vijai Bahadur killed Surajbhan. He merely corroborates what Badri Prasad(PW/8) had said on the spot. His silence regarding the revolver and the bag in the hand of Vijai Bahadur may be due to lack of observation. This omission gives him the stamp of scruplousness in stating what he saw.
17. Laxman, aged 13 years (PW/20) after preliminary examination by the learned Additional Sessions Judge was found to be aware of ethical consideratiors and he was administered oath He works in some hotel in Bharatpur. On the date of the incident he had gone to his employer's house in Ramjilal Dentist's lane to lend him assistence in some ceremony. When he came out of his house and was proceeding to Loha Bazar Vijai Bahadur collided against him. Vijai Bahadur had a green bag in his hand, The witness fell down. Vijai Bahadur's own house was the third from Laxman's employer's house but he passed by it and disappeared in the lane. When the witness reached Loha Bazar he heard the news that Vijai Bahadur had shot Surajbhan. The criticism levelled against his testimony is that he saw no pistol in Vijai Bahadur's hand. We have no hesitation in relying on the testimony of this witness. He deposes regarding the conduct of the appellant soon after the incident. His statement before the police was recorded on the 26th April, 1966. If Vijai Bahadur was running in panic because there were gun shot reports as a possible reason suggested by Mr. Chatterji, learned counsel for the appellant, it is not easy to understand why he did not seek refuge in his own house and passed by it.
18. Gopal Das (PW/17) is another businessman, residing in Ramjilal Dentist's lane. He saw Vijai Bahadur running in that lane and colliding against Laxman (PW/20) between 9 and 9.15 P. M. Soon thereafter he heard that Surajbhan had been murdered His evidence has been criticised on the ground that he opposed Vijai Bahadur's mother in Bharatpur Municipal Election. We have closely examined his evidence and we do not find any trace of animus on that account. He has scrupulousy stated that he did not hear the name of the assailant. His identification of Vijai Bahadur has been challenged on the ground that he was running 'very fast' and that the witness suo motu went to the Police Station to give his statement. Vijai Bahadur has been known to him and, therefore, there was no difficulty in identifying a running man. He went to the cremation of Surajbhan and he learnt that seme people had gone to the Police Station to make their statement and he should also go. He, therefore, went there the very day Surajbhan was cremated. From the evidence of Kashi Prasad (PW/21) we find that the day Surajbhan was cremated there was a Hartal in Bharatpur. He asked the Head Constables and Constables to inform the public that they might come to the Police Station to tell what they knew about the occurrence. This explains why the witness went to the Police Station to assist the investigation.
19. In our opinion the evidence of the shop-keepers is enough to conclusively prove that it was the appellant, who shot Surajbhan in Loha Bazar. There are other unambiguous links which connect him with the crime. Vijai Bahadur was arrested on 26-4-1966 between 7,30 and 8 P. M. In between the night of 27th and 28 th April, 1966 at 3 30 A.M. Vijai Bahadur made a statement to the Deputy Superintendent of Police Kashi Prasad ( Ex, P/24 ) that he went to the dark and blind alley behind the lavatories of the Post Office and after opening the revolver he threw away the six empties in a heap of garbage and thereafter he hid the revolver in the mud of the moat of Kumher fort near a dilapidated well and placed a stone slab over it and he offered to get the empties and the revolver recovered. His confession was recorded under Section 27 of the Indian Evidence Act, Police Constable Khalil Ahmed around the time when the confession was made had brought a 'Badmash' under arrest to the Police Station. Rampal ( PW. 11 ) came to the Kotwali with the constable and Vijai Bahadur told the Deputy Superintendent of Police in their presence that he would get the revolver and the empties recovered. Vijai Bahadur led these independent witnesses and the Deputy Superintendent to the Kumher fort and from the moat unearthed by removing stone slab the revolver (Ex. 6 ). It was seized under memorandum ( Ex. P. 15 ), which bears the signatures of the 'Motabira'. Vijai Bahadur then took the party to the blind alley and from a dump of refuge got recovered six empties 30 bore and their seizure is recorded in a memorandum ( Ex. P. 16 ), which was signed by the 'Motabira'. The revolver Ex. 6 and the six empties collectively marked Ex. 7 were sent to the Ballistic Expert Shri Mohanlal Johari ( PW. 22 ) who has testified to the effect that the revolver Ex. 6 is a. 38 smooth bore weapon. On experiment he found from the firing-pin-mark that the experimental bullet was identical with the marks observed in the six empties Ex. 7. He has, therefore, expressed the opinion that the six empties (Ex. 7) were fired by the revolver Ex. 6. His conclusion was based on microscopic examination and microscopic photograph Ex. P/31). In our opinion, therefore, the six empties (Ex.7) were fired by the revolver (Ex. 6), both recovered as a result of the information furnished by the appellant. The five jacketted bullets, four recovered from the body of the deceased Surajbhan and one recovered from the fold of his vest. (Exs. 22 to 26) were of .38 dimension and were fired by a smooth bore weapon. They could have been thus fired by the revolver (Ex. 6), recovered at the instance of the appellant. The result is that the revolver (Ex. 6 and the six empties (Ex. 7) are conclusively related to one another. The bullets (Ex.22 to Ex. 26) and the revolver (Ex. 6) are relatable to one another because the bore of the revolver (Ex. 6) is smooth and the recovered bullets had no rifling marks and the size of the bore being. .38 is identical. The recovery, therefore, has considerable value in connecting the revolver and the empties with the crime.
20. Mr. Chatterjee, learned counsel for the appellant, assailed the discovery on the ground that the information said to have been given by the appellant's arrest and was accordingly hit by the doctrine of testimonial compulsion. He relied on Amin and another v. The State : AIR1958All293 . The Motabirs are unreliable for their presence at the Kotwali at that odd hour was extraordinary and unworthy of reliance. We have already noticed the time and date of the arrest of Vijai Bahadur and it was after some 31 hours that he furnished the information. This in our opinion does not disclose a long interval. Besides, no question has been directed to Kashi Prasad during his cross-examination suggestive of any harsassment or compulsion by the police officer to attract the applicability of the Allahabad case (1). The submission of Mr. Chattarji that the bullets recovered from the body of Surajbhan and the fold of his 'Baniyan' and from the nearby drain are not connectable with the revolver is correct. We have already held that they are not conclusively related but are relatable to the weapon (Ex.6). The proximity in our opinion is very close and it is not a mere co-incidence that the recovered bullets were of 38 bore that the recovered are six; the number of bullets are also six and there corresponding six wounds of entrance on the body of the deceased; that the revolver recovered is 38 bore and of smooth bore and that the recovered bullets have no rifling marks and were, therefore, fired by a smooth bore weapon and further the revolver had six chambers. The relation between the bullets and the revolver has a clearly probablising proximity.
21. Let us now examine the subject of motive for the crime. Brij Kishore (PW/1) has deposed that his brother Surajbhan was a member of the Communist Party and so also R.N Gaur and Smt Sarita Devi, the father and mother of Vijai Bahadur. R N. Gaur used to divuge the secrets of the party and was in receipt of Rs. 75/-P.M. from the police on that account and on complaint by Surajbhan, Gaur was expelled from the Communist Party. Thereafter R N. Gaur and his son Vijai Bahadur started publishing pamphlets against Surajbhan. Ex. P.1 is an undated printed sheet which carries the caption of 'Surajbhan Khajela Kutte Ki Kali Kahani.' The import of the head-is that the printed sheet contains the story of the sordid deeds of Surajbhan, who is a diseased dog. Ex. P.1 was published by 'Editor Vijai Bahadur Bedharak'. A reading of the pamphlet leaves an unequivocal impression of vulgar and venomous imputations directly accusing Surajbhun of all the mis-deeds conceivable. The other pamphlet is Ex. P.2, which gives the appellation to Surajbhan as a 'history-sheeter' and tells the tale of political rivalry and is another exercise in unbriddled profanity. 'The Lal Nishan'', which was the paper of Surajbhan deceased did not lag dehind in accusing 'the Bedharak' and this was done by Ex. P.3, which appears to have been Dublished some times in May 1965. There is another critical attack by Brij Kishore Gupta PW.1 on R.N. Gaur. Smt. Sarita Devi Gaur and Vijai Bahadur Gaur, etc. on their hunger strike. It is Ex. P.4 dated the 5th July, 1965. There are other pamphlets which we need not notice. There was litigation between Surajbhan and Vijai Bahadur and it is proved from the record Ex. P 27 is a complaint dated 26.7 1965 under Sections 500 and 501 IPC., by Surajbhan Gupta against Vijai Bahadur. Ex. P-28, dated 1st February, 1966, is another complaint by Surajbhan against Vijai Bahadur under Sections 500 and 501 I.P.C. Ex. P.29 is yet another complaint of 1st February 1966 against Shri R.N. Gaur under Sections 500 and 501 of the Indian Penal Code. Ex. P.30 is a complaint, dated 27th July 1965, by Surajbhan against Vijai Bahadur under Sections 323 and 307 I.P:C. These documents conclusively establish bad blood between Vijai Bahadur and his family on the one hand and Surajbhan on the other. Mr. Chatterji, learned counsel for the appellant, frankly conceded that the hostility between the two is not controverted, but Surajbhan had other enemies besides Vijai Bahadur. He invited our attention to the fact that the police had charge-sheeted Surajbhan in 5 or 6 cases and Surajbhan had on his own part given a notice to the Government for damages of the sum of Rs. 7,000/- as admitted by Brij Kishore Gupta. He contended that as late as 26th April, 1966, Surajbhan had gent an application to the Chief Secretary of Rajasthan Government, indicating the danger to his life and the atrocity at the hands of the police. This has been admitted by Brij Kishore (PW.1) in his cross-examination. The learned counsel contended that it is clear that Surajbhan apprehended danger at the hands of the police. The learned counsel further invited our attention to the statement of Sheesh Ram Sharma, Superintendent of police, when he stated that it was brought to his notice that Surajbhan's brothers was disseminating the rumour that the local police had taken a mischievous part in the commission of Surajbhan's murder. In these circumstances, the possibility of the police causing Surajbhan to be murdered cannot be ruled out.
22. We have given our anxious consideration to the argument of the learned counsel. From the fact that a Deputy Superintendent of Police had to be deputed from Jaipur for the investigation of this case it is possible to conclude that the intention was that the investigation might not be tainted by local prejudices. The learned Additional Sessions Judge examined Sheesh Ram and Abhimanyu, the S. P., and S.H.O., Bharatpur respectively, and from their evidence we are unable to conclude that they were so hostile to Surajbhan as to cause him to be murdered. On the other hand the abusive allegations and counter-allegations between Vijai Bahadur on the one hand and Surajbhan on the other, are unmistakable evidence of mounting malice. The motive lends great support to the oral evidence that has been adduced by the prosecution and this in our opinion has been clearly established.
23. There is another circumstance which we must notice in this case. From the evidence of Suresh Kumar Sharma (PW.6), aged 43 years, P.W.D. Contractor, we find that his younger brother Shri Satish Kumar is an Advocate and he lives with him in the same house. Vijai Bahadur keeps on visiting the Advocate. At about 10.30 or 11 P.M. in the night of 25th April, 1966, yijai Bahadur went to the house of Mr. Satish Kumar, Advocate. He made a call and the witness answered it. Vijai Bahadur wanted to see the Advocate. The witness told him that he was sleeping. Vijai Bahadur asked him to wake him up but the witness declined. Vijai Bahadur told him that he wanted to consult him in some case, because the witness did not oblige him, he went away without seeing him. No cross-examination was directed against the witness. This indeed is a circumstance on which the prosecution relies. All that we might say is that it was certainly an odd hour for Vijai Bahadur to visit the Advocate.
24. The learned counsel for the appellant then contended that the best evidence in this case would have been of the Rikshaw driver, who was carrying Vijai Bahadur immediately before Surajbhan was shot. We attach no significance to this omission. All that the Rikshawala would have proved was that he transported Vijai Bahadur to Loha Bazar. In the face of the evidence of Mangilal, who had seen Vijai Bahadur standing near Surajbhan with a pistol in his hand and his hearing the gun-shot reports immediately preceding is enough to prove that Vijai Bahadur was in Loha Bazar with a revolver in his hand.
25. Another criticism that was raised by the learned counsel was as to why search was not conducted in the house of Vijai Bahadur on the 26th April, 1965, when his name was known to the investigating agency and why Vijai Bahadur was permitted to roam about unapprehended. Kashi Prasad (PW/1)in his deposition has stated that he searched the house of Vijai Bahadur on 27th April, 1966. No question has been directed to him as to why he did not do it earlier. Therefore, it is not possible to draw any adverse inference from this trifling delay.
26. The learned counsel also criticized that until the morning of 26th April, 1966 at 10 A.M. the name of Vijai Bahadur was not known to the investigating officer, Kashi Prasad (PW.21). He has stated that he reached Bharatpur on the orders of the Inspector General of Police in the morning of the 26th and he started his investigation at 10 A.M. He got the police guards posted at the outskirts of the city to arrest Vijai Bahadur. He also posted police guards in plain clothes near the house of Vijai Bahadur. He came to know on 26th April, 1966, at about 2 P.M. from Babulal the name of Vijai Bahadur as the murderer of Surajbhan. Babulal approached him of his own accord. The first information report in this case was lodged on the 25th April, 1966, at about 9 P.M It was received on telephone from Kafil Ahmed, Head Constable No. 620, that it was known that Vijai Gaur was the murderer of Surajbhan. In the face of this first information report it is clear that Vijai Bahadur's name reached the police station within a matter of 15 or 20 minutes of the shooting of Surajbhan. Babulal might have been the first witnessto have disclosed the name of Vijai Bahadur to the Investigating Officer. 26th April. 1966, as we had occasion to notice, was observed as Hartal in the city of Bharatpur as there was the funeral procession and cremation of Surajbhah and this may have been responsible for people not coming earlier.
27 From the evidence of Chunnilal (PW.5) we find that Surajbhan was in Loha Bazar at about 8.30 P.M. near Laxman Mandir, He had seen Vijai Bahadur in the area. From the evidence of Badri Prasad (PW.8), Ghaushyamdas (PW.16) arid Mangilal (PW.19) it is proved that it was Vijai Bahadur who had shot at Surajbhan and was running thereafter. From the evidence of Gopaldas (PW.17) and Lachhman (PW.20) it is proved that he was running fast in Ramjilal Dentist's lane. Fortified by the evidence of the recovery of six chambered revolver of .38 bore and six empties of the same bore and pin marks produced by it discovered in pursuance to the information given under Section 27 of the Indian Evidence Act and there being corresponding number of injuries on the body of the deceased and the bullets being of 38 bore coupled with the evidence of strong motive, we are satisfied that prosecution has succeeded in establishing beyond shadow of doubt that Vijai Bahadur Gaur shot six bullets in the body of Surajbhan as a result of which he died. He has, therefore, been rightly convicted under Section 302 I.P.C., and his conviction calls for no interference.
28. Then remains the revision filed by the State Government for enhancement of the sentence of Vijai Bahadur. The learned Sessions Judge has not awarded the extreme penalty of death in this case because he has observed,.the murder was not committed for any sordid purpose nor it turns out to be a case of planned murder. The accused was actuated with the strong feelings of enmity and anger. Accused Vijai Bahadur is Brahmin by caste and a journalist by profession. He has not been proved to be savage or indulging in brutal activities in the past, so that he may be considered to be a menace of (sic) the society. Therefore, in my estimation, it will not be just to pass the extreme sentence.
In Vadivelu Thevar v. The State of Madras : 1957CriLJ1000 their Lordships of the Supreme Court in paragraph 13 have observed--
The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only then, it would, be justified in imposing the lesser of the two sentences provided by law.
29. In our opinion the learned Additional Sessions Judge is in error when he finds that sordid purpose is lacking in this murder. It is clearly a case of political enmity finding expression in bullets to liquidate an opponent The purpose is patently mean and selfish. Avarice for money is usually sordid but gain for political advantage is no less base. Political antagonism when it degenerates to the level of murder has to be checked by deterrent punishment lest the trend may become a menace to the society. The learned Additional Sessions Judge is also wrong when he says that it was not a planned murder. Chunnilal (PW/5) has deposed that Vijay Bahadur passed him and Surajbhan deceased when they were talking near Ganga Mandir. From this circumstance it is easy to conclude that Vijay Bahadur was in the locality and on the look out for an opportunity. Ordinarily people do not roam about in a town with 6 chambers of an unlicensed revolver loaded. When Surajbhan was found walking alone Vijay Bahadur, without any wrangle verbal or physical triggering any imminent anger, spent his entire ammunition in the weapon on Surajbhan an unarmed man. This in our opinion is a calculated murder. Reference in this connection may be made to a decision of the Supreme Court in Tapinder Singh v. State of Punjab and another : 1970CriLJ1415 where five shots were fired on a victim by the accused on account of enmity and the murder was regarded as pre-planned and deliberate. Riddling a man with six bullets from close quarters on the vital parts of the victim's body is plainly indicative of a determination to plug all human possiblities of his survival. The caste and profession of Vijai Bahadur are entirely irrelevant factors for regulating the quantum of punishment. It is the nature of the crime, the spring of motive, the manner of its commission and surrounding circumctances which should determine the punishment, We are left equally unimpressed by the observation of the learned Additional Sessions Judge that there is no evidence of Vijai Bahadur's past brutal behaviour. Such an evidence would have been irrelevant under Section 54 of the Indian Evidence Act unless the accused tendered evidence of good character. The accused led no such evidence and therefore this argument has no relevance for want of evidence either way. In the ultimate analysis it was a murder motivated by political enmity,the venum and vulgarity of which is manifest from the phamplets Ex, P. 1 and Ex. P. 2. it was a designed murder because Vijai Bahadur acquired an unlicensed revolver loaded it to its maxim capacity and triggered all bullets on his enemy on a public high-way when Surajbhan was walking alone without any immediate cause and leaving no chance for his survival. We have given our anxious thought to the question and we are unable to find a single relevant circumstance in favour of Vijai Bahadur which may mitigate the enormity of the crime. The proper sentence in these circumstances is nothing but death.
30. No argument was advanced by the learned counsel for the appellant against the conviction and sentence of the appellant under Section 25(1)(a) of the Indian Arms Act, therefore, the conviction and sentence of the appellant under the Arms Act are maintained.
31. We accordingly reject Vijai Bahadur's appeal and maintain his conviction under Section 302 I.P.C. We accept the State's revisional application and enhance the sentence of Vijai Bahadur from imprisonment for life to one of death. We direct that Vijai Bahadur be hanged by the neck till he is dead.