J.P. Jain, J.
1. Sentence of death passed on Sahab Ram for having committed triple murder, by the Sessions Judge, Sriganganagar, has given rise to the murder reference No 1/74 Sahab ram was also held liable for attempt to murder three more persons and convicted Under Section 307 IPC. with a sentence of 10 years, rigorous imprisonment By his appeals, one from jail and the o her through his counsel, he has challenged his conviction and sentence This judgment will dispose of all the three matters.
2. In village Khedhasri under police station Rawatsar, District Ganganagar, Het Ram (P.W. 2) had 20 Big has of land under temporary allotment for (sic), Bhiya Ram jat had also 20 Bighas, and Mslloo Ram Harijan had another 15 bighas of land for cultivation on similar terms from the Government. Out of this land Sahab Ram accused was allotted some land in exchange of his original land which was acquired by the Government. Het Ram, Bhiya Ram and Malloo Ram challenged the allotment in favour of Sahab Ram in appeal. It is common ground that the allotment in favour of Sahab Ram was cancelled by the Appellate Authority. Sahab Ram then took the matter in in second appeal to Board of Revenue Ajmer, and he obtained on ad interim order on 29-8 72 (which is not on record) restraining the previous allottees from dispossessing Sahab Ram. After notice, Het Ram, Bhiya Ram, and Malloo Ram submitted their reply through their counsel and the ad-interim order was modified with the consenit of the counsel for both the patties by the Board of Revenue on 12-10-72. A copy of this order is on record marked Ex P/ 56 According to this order the status-quo was ordered to be maintained as it obtained on 29.8.72. It appears that each party claimed to be in posession and hence the said modified order was passed. In the after-noon on 15.10.1972 a Panchayat of the village was convened and it was attended among Jats be Herchand (P.W. 8); Naniram (P.W. 6), Devi Lal (deceased), Nikooram; Devi Ram (injured P.W. 5), Hit Ram (P.W. 2), Minna Rim, Sahab Ram (accused) and his brother, Ashu Ram, Kumba Ram, Nanak, Kalooram, Ram Lal (deceased) Rakhi Ram (Injured P.W. 3) and Birbal (P.W. 4) meghwals by caste also attended the Panchayat. At the Panchayat Ram Lal s/o (sic) o Ram (deceased) and Het Ram (P.W. 2) showed the copy of the stay order and told the Panchayat that Sahab Ram was trying to oust them from the land which had been in their cultivation Some one from the Panchayat asked Sahab Ram to desist from doing so According to some witnesses Sahab Ram was asked by the Panchayat to deliver the land to Het Ram and others On this Sahab Ran stated that he would not accept the stay order and he would not leave possession of the land allotted to him, come what may. He further threw a challenge that he would see those who have brought the stay Saying this he left the Ponchayat along with his brother. The villagers who joined the Panchayat stared dispersing. Malloo Ram and his three sons Ram Lal, Bitbat and Rakhi Ram also left the place to go to their house. While they took the turn towards the north near the 'Bora' of Rati Ram and proceeded towards the house, Sahab Ram came from behind armed with a gun and called out Ram Lal to stop and to have the consequence of bringing the stay order. When Ram Lal turned towards him he fired a shot at him from his 12 bore signle barrel gun. This was witnessed by Het Ram, who was behind them at a distance of a tew panvadas and had taken the turn towards south, to go his to house Hetram hearing the first shot ran away towards the fields but he heard (sic) other gunshots He came back to his house only after it was dark. Malloo Ram apprehending danger also fled away to the jungle Ram Lal who was injured by the first fire fell down Sahab Ram again fired a shot towards Ram Lal after he fell down. Ram Lal asked for water. Rakhi Ram his brother immediately brought some water for him from the house nearby of Rati Ram While he wanted to give him water he was also slot by Sabab Ram vith the result that Rakhi Ram's right hand was injured and he could not provide water to his brother Ram Lal. While Rakhi Ram was trying to escape, another shot was fired, which struck Rakhi Ram at his thigh and according to Rakhi Ram some pellets also struck Ram Lal on his chest and he died Birbal (P.W. 4) another brother of Ram Lal ran towards the 'Dbab' of the village and witnessed four shots fired by Sahab Ram. Then the accused ran towards the Gowad the place where the panchayat took place. At that place after the panchayat had dispersed, Har Chand; Devi Lal, Gopal Nikooram and Devi Ram were sitting and talking. When Sahab Ram was going towards the house of Malloo Ram they had seen the accused passing from their side with a gun in his hand but they did not take any notice of it, as they did not expect that he would kill any one. When they heard He gun shot reports from towards the 'Bara' of (sic) Ram they first got up and proceeded to go towards that place In the meanwhile Sahab Ram was seen coming with 12 bore gun in his hand and a black bag on his shoulders towards them Sahab Ram called out Devi Lal s/o Basti Ram and said that he has already given Ram Lal the result of the stay' and now he should also reap the consequences for holding the Panchayat and immediately fired at him. The shot injured Devi Ram s/o Sukha Ram at his left leg and struck Devi Lal s/o Basti Ram on his leg on account of which the latter fell down Har Chand and Nikoo Ram ran towards the room of Mani Ram situated on the north-west corner of the 'Gowad' and Devi Lal ran towards the 'Bara' of Manphool on the north-east corner of the place Gopal, who was the brother of Devi Lal ran towards the latter entreating Sahab Ram not to fire, but Sahab Ram fired a shot at him as well, on account of which Gopal also fell down He is said to have fired some more shots. After Sahab Ram had left the place, Har Chand, Nikoo Ram and Devi Ram came back to the place of occurrence and found Devi Lal and Gopal sons of Basti Ram dead. Sahab Ram did not feel satisfied with these killings, and went to the house of Het Ram and asked his wife, Mst. Shanti (P.W. 1), as to where Het Ram was. She told him that she did not know (sic) Sahab Ram told her that in case she would not tell, he would kill her. As she was unable to fell Sahab Ram anything about Het Ram he fired a shot at her which injured her right band and the ribs of right side She cried out and fell down Then again he fired a second shot towards her, which struck her right thigh and the left leg Sahabram after having fired two shots left the place. After a while Devi Ram and Nikco Ram came to her house and she apprised them of the incident She was taken to the house of her farther in law from where she was shifted to the hospital,
3. A report to this effect was lodged by Har Chand (PW 3) at 10-15pm. on the same evening at the police station Rawatser at a distance of 12 miles. The report was recorded by one Yusufali Literate Constable at the dictation of Harnathsingh (sic) hard constable incharge of the police station of the police station at that time. He registered of case Under Section 302&307 IPC. The is report is Ex P/8 After sending a word to Station House Officer & the he reached the scane of occurrence at 11 45 pm On his way Birbal (P.W. 4) met him and he also accompanied him He found Ram Lal, Gopal and Devi Lal dead He deputed Nikoo Ram & Devi Ram with some constable to look after the dead bodies He recorded the statement of Mst. Shanti soon after and sent her for medical examination to Rwatsar Hospital Next morning he prepared the site plan Ex P/11. He seized nine empty cartridges and 13 wads from the place and a pair of shoes, where Devi Lal and Gopal were found dead. He also collected the blood stained earth. From the place where Ram Lal was found dead, he recovered 3 empty cartridges of 12 bore gun and 5 wads and a pair of shoes From there he also collected the blood stained earth From the house of He Ram be collected the the blood of the injured, the blood stain d earth and an empty cartidge. He also prepared the description memos of the three corpses and the inquest reports of Devi Lal (Ex.P/21), Gopal (Ex.P/22)and Ramlal (Ex P/25).
4 At about noon on the 16th October, 1972 Vichitra Kumar, Station House Officer (P.W.13) and Kan Singh, Circle Officer (P.W.14) joined Harnath Singh in the village Shri Kan Singh took ever the investigation in his hands.
5. Dr Bheem Singh, Medical Officer-in-charge Primary Health Centre, Rawatser was sent for and he conducted the post mortem examinations in the noon of 16th October, 1972. According to the post-mortem report (Ex.P/15) relating to Ramlal deceased, the Medical Officer found 57 external injuries. He recovered 27 pellets from his dead body, 14 from thoraxic cavity, 10 from the abdominal cavity and 2 from the fore arm and 1 from the thigh. The injuries were reported to he the result of three fires. All these injuries were found to have been caused by fire arm According to the post-mortem examination of Devi Lal (Ex.P/6) 12 external injuries were noticed. There were six entry and six conesponding exit wounds and they appeared to have been caused by one shot or at the most: two. The post-motem examination report of Gopal Ex P/7 indicated 8 external injuries. Four of them were found to be exit wounds Two pellets were recovered by the doctor These injuries, in his opinion were caused by two shors. The pellets recovered from the dead body of Ram Lal and of Gopal were sent by the doctor to the Investigating Officer vide Ex P/9 and Ex P/10 respectively,
6. Mst. Shanti (PW1) was medically examined by Dr. M.P. Agrawal (PW. 12) The injury report is Ex. P/2 He frund 8 injuries. All of them were caused by fire arm. All injuries were simple except injuries Nos. 5 and 6 which were suspected to be serious and x ray was advised X ray report Ex P/3 only showed that metallic foreign bodies were detected in the left chest wall, in the right arm, in the right leg and in the left thsgh.
7. Rakhi Ram (P.W. 3) s/o Malloo Ram was also examined by Dr. Agrawal. His injury report is Ex. P/1. According to it he sustaintd 10 injuries. All of them were caused by gun-shots except No. 8 which consisted of two lacerated wounds each 1/2'x 1/2', one on the anterior aspect of the right knee and the other 1'' below the first It was reported to have been caused by blunt weapon. All the injuries were simple The gun shot injuries could be caused by one fire.
8. The result of the medical examination of Devi Ram is contained in Ex P/6. It shows that he had one injury 1/2 cm.x 1/2cm. x 1 cm. deep to the muscle on the medical border of left foot caused by a fire arm.
9. Sahab Rem was arrested on 17.10 72 He had with him at the time of arrest, one 12 bore single barrel gun No 5619 & a bag of black colour with four live cartridges and a licence No 113 of the gun in his name They were recover d from him. While in custody he informed the police officer that be had kept 13 live cartridges with one Mangoo Ram s/o Ratna Ram Jat of Chak Haripura In pursuance of this information the discovery of 18 cartridges was made from the possession of Mangoo Ram s/o Ratna-Ram. These cartridges had the inscription on them as KF 'Special Long Range Cartridges' made in India. It may be recalled here that one of the nine empty cartridges recovered vide seizure memo Ex P/12 had the same inscripon it Similarly one of the three empty cartridges recovered vide recovery memo Ex P/'24 had a likewise inscription on it The report (Ex.P/33) of the Central Forensic Science Laboratory was obtained by the Investigating Officer and it meant to say that the empty cartridges recovered from the place of occurrence were fired from the licensed gun of Sahab Rarn. The accused Sahab Ram was then charge sheeted in the Court of Muasif Magistrate First Class, Bhadra. During the preliminary inquiry the accused refused to give his full statement and only stated that the case against him is false. Accused was thin committed and sent up to the court of Session, Sri Ganganagar to face his trial Under Section 302 and 307 I P.C
10. Before the learned Sessions Judge he pleaded not guilty and claimed trial. The prosecution in support of its case examined as many as 15 witnesses. The accused in his statement under Section 342 Cr. P.C, stated that during that panchayat, the panchayat people quarreled with him and his brother Jai Lal. Jai Lal and his family were staying with him at his house in Khedasri Ram Lal, Devi Lal, Gopal, Rakhi Ram and Devi Ram were armed with lathies and they chased him and his brother. His brother Jai Lal in order to defend himself and the accused fired shots by the licensed gun which belonged to him. He did not know that Jai Lal had also cartridges of the gun with him Mst Shanti might have been injured incidentally by one of those pellets during that fire. On his part, he did not fire any shot from the gun, nor did he cause any injury to any one of the (sic). The opposite party in collusion with the police had implicated him in a false case. He did hot however, examine any witness in defence.
11. During the course of his submissions which were addressed to us at length, the entire endeavour of Mr. Mulla, leraned Counsel for the accused Sahab Ram, has been to point out that the facts of the case do not call for the extreme penalty of death. In other words, he did not specifically address the court to challenge the conviction of Sahab Ram Under Section 302 or Under Section 307 I.PC Irrespective of what he has argued, it is the duty of this court, in the proceedings for the confirmation of death sentence, to reappraise or re-assess the entire evidence, to satisfy itself about the guilt or the innocence of the accused The High Court is required to come to an independent conclusion of its own Their Lordships of the Supreme Court, in Jumman v. State of Punjab : 1957CriLJ586 . while referring to the provisions contained in Chapter XXII of the Code of Criminal Procedure observed as follows:
It is clear from a perusal or these provisions that in such circumstances the entire case is before the High Court and in fact it is a continuation of the trial of the accused on the same evidence and any additional evidence and that is why the High Court is given power to take fresh evidence, if it so desires. In an appeal under Order 41 Civil PC an appellate Court has to find whether the decision arrived at by the Court of first instances is correct or not on facts and law; but there is difference when a reference is made Under Section 374 Cr. P.C, and when disposing of an appeal Under Section 423, Criminal PC, and that is what the High Court has to satisfy itself as to whether a case beyond reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. In fact the proceedings before the High Court are a re-appraisal and re-assessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials apart from the view expressed by the Sessions Judge. In so doing the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the law above mentioned, it is for High Court to come to an independent conclusion of its own.
12. Reference may also be made to another decision of the Supreme Court in Masalti v. State of U.P. : 8SCR133 where their Lordships observed:
Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Sessions. The conclusions of the High Court on the merits in such proceedings must be independent and so, the High Court inevitably has to go into the whole of the evidence, consider all the pros and cons of the case and satify itself that the offence charged Under Section 302 I.P.C. is established beyond reasonable doubt and the sentence of death submitted to it for its confirmation is fully justified.
13. Folic wing the law as laid down by their Lordships of the Supreme Court, we will, at the outset, examine the evidence produced in the case. P.W 2 Het Ram proves that Bhiya Ram, Malloo Ram and he (the witness) had some land in the village Khedesri under temporary allotment for cultivation of the said land and the same was allotted to Sahab Ram in exchange of the at land which was acquired from Sahab Ram They were aggrieved by this allotment and challenged the same in appeal where the order of allotment in favour of Sahab Ram was set aside. The witness maintained that they (the previous allotters) continued to remain in possession Sahab Ram filed an appeal in the Board of Revenue, and brought an exparte stay order. They contested the order & they got the final order of the stay in their favour Tnspite of the order Sahab Ram was trying to oust them by force. A panchayat of the village people was therefore convened v hich took place a couple of hours before the sunset on 15th October, 1972 Sahab Ram and his brother were also present in the panchayat. The panchayat was informed that inspite of the stay order, Sahab Ram was forcibly dispossessing them. The stay order was also shown to the panchayat by Ram Lal deceased and the witness. Sahab Ram stated that he would rot accept the stay order, and would see those who have brought the stay order. He felt offended and left she panchayat, with his brother. This part of the case is very much supported by Rakhi Ram (P.W 3), Birbal (P.W 4), Devi Lal (P W 5). Nikoo Ram (P W. 6) and Harchand (P.W. 8). The stay order as finally passed is on the record and marked as Ex P/56, This was issued by the Board of Revenue on 12th October, 1972, according to which the courts below were directed to maintain the status quo as it obtained on 29th August. 1972. Mr. Mulla strenuously urged that Sahab Ram was put into possession of land a lotted to him on 7th June, 1971 and it was he who was in possession and in fact Het Ram, Nikoo Ram and Bhiya Ram were trying to dispossess him. There is no direct evidence on the record to show if accused Sahab Ram was put into actual physical possession, after the land was allotted to him, or as to who was in actual possession on 29th August, 1972 The statements of PW 3 Rakhi Ram and PW 4 Birbal were referred to, who deposed that the accused was asked by the panchayat that in view of the stay order passed by the Board of Revenue he should deliver the land to the previous allottees. On the basis of this evidence it has been argued that Sahab Ram must have been in possession otherwise there was no point in asking Sahab Ram to deliver back the possession of land to the former allottees According to Devi Lal (P.W 5), Nikco Ram (P W. 6) and Harchand (P.W 8), the panchayat was called to (sic) their dispute No sooner the stay order was mentioned to Sahab Ram, he showed his temper and left the place after throwing a challedge to those who obtained it. In our opinion the question as to who was in actual possession is not very material in this case. It appears to us that both the parties claimed to be in possession of the land in question before the Board of Revenue and the learned Board of Revenue with the consent of the counsel for both the parties passed the order as contained in Ex P/56. According to this order, if Sahab Ram was in possession on 29 8 1972 the stay order was in his favour, and if the other party was in possession of the said land, the stay order could be read in their favour. In this case we are to determine as to whether the crime as alleged by the prosecution was committed by Sahab Ram. From the evidence, it is very well borne out that the stay order was not read out in the panchayat. Neither Sahab Ram read the stay order nor did he care to find out from his lawyer or otherwise as to what that stay order contained. In any case, the over whelming evidence is that the Panchayat took place in the village a couple of hours before the sun-set, and it was attended by the witnesses; the accused and his brother the three deceased and some others and at the request of Ram Lal and Het Ram, Sahab Ram was asked to deliver the possession of the land to them. Sahab Ram showed his determined attitude to disregard the stay order and throw a challenge that he would see all those who brought the stay order and left the place with his brother, the panchayat dispersed without taking any actual decision of the dispute On this evidence we have no hesitation to hold that all this happened on 15-10-1972.
14. Malloo Ram, with his three sons, Ram Lal, Rakhi Ram and Birbal left the 'Gowed', where the panchayat took place, to go to their house. After crossing the 'Gali Aam' towards the west when they came near the 'Bara' of Rati Ram, they took a turn towards the north. Het Ram also left the place and he was just behind them. His house is towards south, after the 'Gali Aam' is crossed. Het Ram took the turn towards south and soon after Sahab Ram armed with his gun and a black bag on his shoulders came from behind. Fallowing Malloo Ram and his sons he shouted at Ram Lal asking him to stop and take the consequence of stay order and immediately fired a shot at him from his gun. It injured Ram Lal at his left thigh. These facts are very well proved by the statements of Het Ram (P.W. 2). Rakhi Ram (P.W. 3), and Birbal (P.W. 4) Hetram seeing the first fire ran away towards the fields. According to P.W. 3 and P.W. 4 as a result of the first fire Ram Lal fell down at point 'C' shown in the site plan Ex P/1 According to Birbal (P.W. 4) a second shot was fired while Ran, Lal was lying on the ground Both Rakhi Ram and Birbal are one when they deposed that Ram Lal asked for water on which Rakhi Ram went to the house of Rati Ram to fetch water. He brought water in a 'Degchi' and when he tried to (sic) water in the mouth of Ram Lal, a shot was fired at Rakhi Ram which struck him on his right hand and it prevented him from giving water to Ram Lal. Rikhi Ram then tried to escape but accused Sahab-Ram again fired a shot, which struck both Rakhi Ram and his brothers Ram Lal On account of this shot. Rakhi Ram's thigh was injured ands Ram Lal got an injury on his chest. Ram Lal died instanteously on account of that injury on his chest. The evidence of Dr Bheem Singh (P.W. 9) supports the testimony of Birbal (P.W. 3) according to which 57 external injuries found on the dead body of Ram Lal were the result of 3 fires. The doctor's testimony further confirms when he found 14 pellets in Thoraxic Cavity, 10 in Abdominal Cavity, 2 in the fore arm and 1 in the thigh The injuries of Rakhi Ram as recorded in the injury report Ex.P/1 are proved by Dr. Agrawal (P.W. 12). Some criticism was made with regard to the testimony of Dr. Bheem Singh (P.W. 9) when he stated that there was some blackening and tattooing on the injuries. This is not of much significance all there have been several fires and we have several eye-witnesses to tell the incident. That apart, Dr. Bheem Singh corrected himself in the cross-examination when he deposed, ''In my report, I have stated that blackening and tattooing was present but I have not mentioned that these were present on the surface around....This doctor is an inexperienced hand and had been in service for three years only. The evidence is that the firing was done from a distance of 45 panvadas.
15. To summarise the evidence relating to this part of the crime is that Het Ram (P.W. 2) witnesses the first fire when he turned back when Sahab-Ram shouted at Ram Lal to stop. Rakhi Ram and Birbal who were with the victim Ram Lal also witnessed the crime, Rakhi Ram was himself injured in his effort to pour water in the mouth of his injured brother Ramlal Birbal saw the first two shots from the place where Ram Lal was standing but then he went towards 'Dhab' and from there he witnessed the other two shots which were aimed at Rakhi Ram. From this place of occurrence 3 empty cartridges were recovered vide seizure memo Ex. P/26 The recovery of three empties also suggests that not less than 3 fires were made at that place& it lends credence to the testimony of the eye witnesses In this view of the evidence, we are satisfied that Sahab Ram killed Ram Lal and injured Rakhi Ram in his attempt to murder him by filing shots Sahab Ram fired a shot at him as well which injured Gopal and he also fell down, According to P.W. 5 6 and P.W.8 several other shots were fired at Gopal and Devi Lal who were lying injured in that 'Gowad'. After Sihab Ram had left the place, the three witnesses, who had gone in the hiding came back and found Gopal and Devi-Lal dead. It was argued that these three witnesses could not have seen Sahab-Ram firing other shots, if they had gone to the house of Manphool & Maniram and closed the doors. According to the leraned Counsel for the accused it was not possible for the witresses to have seen the actual firing. The first two fires, one at Devi Lal and the other at Gopal were definitely seen by these witnesses before they ran away from the place There is nothing in the evidence to show that it was impossible for these witnesses to see the subsequent fires. In any case, they could hear the gun shots and soon after firing was stopped when they came out they found the two persons dead. PW. 9 Dr. Bheem Singh's evidence lends further assurance when he proved the injuries of Devi Lal and Gopal after performing the post-(sic) examinations of their bodies In his opinion the injury caused to Devi Lal, were possible by one fire or at the most by two. Similarly the injuries of Gopal could be caused by two shots. The result of his examination was that the death of Gopal and Devi Lal took place of the gun fires. The injury of Devi Ram is also proved by the Medical evidence. It was caused by a fire arm. The investigating officer recovered 9 empty cartridges and 13 wads from the place where Gopal and Devi Lal were found dead. These empty cartridges are of 12 bore gun The recovery strengthens the evidence to prove that more than four shots were fired. From this evidence we have no hesitation to hold that Sahab Ram was responsible for the murder of these two persons Devi Lal and Gopal and he also attempted to cause murder of Devi Ram by using his fire arms.
16. No we deal with the incident at the house of Het Ram. the third scene of occurrence in the course of that day's event. Het Ram (P.W. 2) escaped the notice of the accused Sahab Ram, as he luckily tock the turn towards the south after he crossed the 'Gali am' a little earlier than Sahab Ram reached there. Sahab Ram had not forgotten him. Not being satisfied with the three murders committed on that day, he went to the house of Het Ram to find him out. He entered the house, asked Mst. Shanti, wife of Het Ram as to where Het Ram was. He was not satisfied with the answer of Mst. Shanti that the did not know her husbands' where abuts. He fired two shots at her in succession. The first struckher right hand and the ribs on the rignt side. As a result of which she fell down The another shot injured her right thigh and the left leg. Mst. Shanti (P.W. 1) testified this fact in the witness box. Her testimony is further corroborated by the injury report Ex. P/2 and the statement of Dr. Agarwal (P.W. 12). The x-ray report Ex. P/3 also detected metallic substance at the four places injured by the gun shots.
17. On behalf of Sahab Ram it has not been urged that Mst. Shanti was (sic). As a matter of fact in his plee he admitted that she might have been injured incidentally by one of shots fired by his brother Jai Lal. There is no evidence to support the plea of Sahab Ram. We are satisfied that there is good and reliable evidence to hold that Sahab Ram was responsible for attempting to cause murder of Mst. Shanti.
18. P.W. 11 Shri O.P. Chug has come in the witness-box to prove his report Ex P/33 According to him the 12 bore gun was found in working order and the three crime empty cartridges and the nine other crime cartridges were fired from that gun This has also not been denied by the accused Sahab Ram that his licenced gun was not used in firing and causing injuries to the victims. His plea was that his brother used the gun as the five victims followed him and his brother Jai Lal armed with lathies and Shanti was only incidentally injured on account of one of those fires.
19. In fairness to Mr. Mulla we must observe that he did not rightly challenge the criminal liability of Sahab Ram for having committed the triple murder of Ram Lal, Gopal and Devi Lal and for having attempted to cause murder of three other persons nemely Rakhi Ram, Devi Ram and Mst. Shanti. On the appraisal of evidence we have no manner of doubt that the conviction of Sahab Ram Under Section 302 and 307 I.PC is quite just and proper.
20. The principal question that has been canvassed before us is whether the facts and circumstances of the case call for the penalty of death as proposed by the learned trial judge. Mr. Mulla leraned Counsel representing the accused submitted that the panchayat of the village brought pressure on the accused to deliver possession to Het Ram, Mailoo Ram and Bhiya Ram and as such the accused got upset. According to the leraned Counsel, Sahab Ram was 1er down by the Government in having cancelled the allotment which was made in his favour in exchange of his land acquired by the State and on the top of it the Panchayat was asking him to leave the possession of that land, and all this made Sahab Ram to lose his mental balance. We are not impressed by this sumission Tokill a man is not a natural instinct of a human being. When a man commits a crime as that of murdering another he definitely loses his balance but that by itself is not an extenuating circumstance.
21. From the evidence on record we are unable to accept the submission of Mr. Mulla that 'here was any pressure brought through the agency of the panchayat. It is true that there was some dispute between the parties relating to the allotment of land Het Ram, Malloo Ram, and Bhiya Ram had lands under temporary allotment for cultivation. Ordinarily the land given in temporary allotment by the State remains in cultivation as the allotment is renewed year to year. The land which was under their cultivation, was rightly or wrongly allotted to Sahab Ram The aggrieved parties went to the court of law in appeal against the order of allotting authority. Het Ram and other succeeded in appeal and the allotment was cancelled. Sahab Ram challenged that order and he had full justification to do so. But this is also right that the ad interim say order obtained by him was modified with the consent of his counsel and the courts I representing Het Ram and others. Het Ram and his party believed that the stay order was in their favour and asked Sahab Ram through the panchayat that he should not insist upon taking forcible possession If Sahab Ram was in possession on 29 8 72 and prior to that, he was obviously entitled to remain in possession on the basis of the stay order Ex. P/56. The stay order was shown to him during the panchayat, he did not care to read it nor did he think it worth while to consult his lawyer as to what the stay order meant He expressed his disregated to the stay order without knowing the contents thereof. We are also of the opinion that no undue pressure was brought on him to hand over the possession to the former allottees He was simply asked by some people from the panchayat with a view to resolve the dispute between two parties. No overt act was done by the panchayat to dispossess Sahab Ram, it Sahab Ram was in possession There was, therefore, no ground for Sahab Ram to get upset never the request made by some of the members of the panchayat. There appears to be no circumstance in the argument that he was let down by the Government and that he had some reason to lose his mental balance. The order of the allotting authority was questioned in appeal and it was set aside and if the appellate order was bad, Sahab Ram had gone to the Board of Revenue to assail it We are unable to see that he had any justification whatever to lose his balance on that account. If a man is over sensitive and for no reason he takes into his hand a training suggestion, so seriously, as to arm himself with a formidable weapons, and goes to liquidate a number of persons, he cannot in our opinion, plead with any justification his sensitiveness as an extenuating circumstance. We are clear in our mind that in the circumstance of the case there was not even a semblance of reason for any provocation or getting emotional
22. The submission of the learned Public Prosecutor that while throwing a challenge Sahab Ram showed his determined attitude to see all those who obtained the stay order, which he presumed to be against him. He left the place with that determination and came back with a gun, a formidable weapon. He translated his determination into action by shooting at Ramlal and stopping him to have the consequence of the stay order. His firing shots at Rim Lal and then Rakhi Ram showed the he planned to murder all these who were concerned with the stay order. His act in firing at Ram Lal and the again when he was lying on the ground and than (sic) a shot at Rakhi-ram batrayed complete lack of compasion in him Learned Public Prosecutor characterised this act, an act of severe cruelty Sahab Rim's again going to the 'Giwad' and firing several shots without the least thought that he was taking the lives of two persons; who did not have anything to do with the dispute, further showed that he was really brutal. When the was unable to find Het Ram at his house he even fired twice at the innocent lady, Mst. Shanti. Though Mst. Shanti escaped the fatal injury yet there is not the least doubt that Sahab Ram was inclined to (sic) murder with all the the characteristics of brutality Ali these circumstances is borne out from the material available on record and the submissions made by the learned public procecutor, we have no escape from the conclusion that the act of the accused in committing the triple murder and in firing at Mst. Shanti was brutal and the murders committed by him do deserve the extreme penalty of death.
23. Leraned Counsel for Sababram called our attention to the charged out-look in the matter of awarding the sentence of death. He has also conferred to some decisions of the Supreme Court which we will presently discuss. The first case referred to is Apren Joseph and Ors. v. State of Kerala 1973 Cr LJ 185. In that case five accused persons were sentenced to death for the murder of one Karuvilla and five other accused were sentenced to life imprisonment for the same offence. Their Lordships by majority commuted the sentence of death to that of imprisonment for life (sic) J who delivered the majority judgment, observed as follows;
Coming to the question of sentence imposed on accused Nos. 1 to 6, after the amendment of Section 367(5), Cr. PC. in 1955 it is a matter of judicial discretion for the court to decide on a consideration of all the relevant circumstances of the case, which of the two permissible sentences Under Section 302, I.PC should be imposed. It is no longer necessary to give reasons for the lesser penalty. The determination of sentence in a given case depends on a variety of considerations, the more important being, the nature of the crime, the manner of its commission, the motive which impelled it and the character and antecedents of the accused. So far as the accused before us are concerned it appears that in their excessive zeal fort heir party they felt unduly provoked by the success of the meeting organised by the Karshak Sangham and being misguided by political intolerance and cult of violence they committed the offences in question soon after the said meeting. We, therefore, feel that the interest of justice would be fully served in this case if we substitute the sentence of imprisonment for life for the sentence of death. We, however, must not be understood to lay down any general rule with regard to sentence applicable to all cases of political murders.
24. It is needless to say that on the peculiar facts and circumstances of the case their Lordships held the murder in that case as a political murder. But they clearly observed that they do not mean to lay down any general rule on the subject.
25. Next case referred to is Kesar Singh v. State of Punjab AIR 1974 SC 987. Kesar Singh was convicted Under Section 302 I.P.C. and sentenced to life imprisonment by the trial Judge. He committed three murders On appeal the High Court of Punjab and Haryana allowing the revision application of the State enhanced the sentence of Kesar Singh to one of death. Their Lordships of the Supreme Court reduced the sentence of death to one of imprisonment for life. The reasons stated by their Lordships, are found, in the following observations of Beg J, who spoke for the court:
It may be mentioned here that Kesar Singh's sister Tej Kaur, with whom he was said to be residing and who was the owner of the licensed double barrelled gun recovered from the appellant's possession, was also challaned as an instigator, but was discharged. It may be that the appellant had grown up from childhood hearing the useful story from his widowed sister, of the murder of his brother in law, Gurnam Sitsgh, who was a step brother of Gurdev Singh. The appellant, who is a young man, may have been impelled (sic) on by the grief of his widowed sister to participate in the murder of three men as a part of vendetta. It had come in evidence that two of the murdered men, Kernail Singh and Dewan Singh, had bet n prosecuted for the murder of Gurnam Singh the brother in-law of Kesar Singh and had been acquitted.
Therefore, although we hold that Kesar Singh was guilty of an offence punishable Under Section 302, Indian Penal Code, we do not consider all the reasons given by the High Court for awarding the death sentence to have been substantiated. The High Court bad overlooked facts which we have mentioned above. It bad also over-looked that there was nothing, apart from the occurrence, proved about the character of the appellant. Nothing was disclosed about the antecedents of the appellant. It was more likely, as we think it was, that the appellant was one of the several murderers and that he had caused the death of only one man with his gun, the otheres having been killed by others who were probably not recognised, the real basis adopted for awarding a death sentence to him would disappear.
26. This is obvious that the very basis that Kesar Singh was liable for triple murder, disappeared in view of the finding arrived at by the Supreme Court.
27. In Chawla and Anr. v. State of Haryana : 1974CriLJ791 , Sarkaria J, who delivered the judgment of the court, took notice of the mitigating circumstances in the case, They were summed up as follows:
There was some probability of the tragedy having been provoked or precipitated by the blame-worthy and intransigent conduct of the deceased in regard to the retaining or retaking possession of the land that had been finally allotted to the accused by the consolidation authorities.
Chawla appellant was responsible for causing only one out of the three fatal injuries received by Ram Dia deceased. Probably that was the only blow given by him to the deceased while the remaining six punctured wounds were all caused by the other accused who have been awarded the lesser sentence.
Chawla and Mukhtiara appellants are immature youths who appear to have acted at the instigation of their elder, Harlal.
Prolonged mental torture suffered by Chawla and Mukhtiara on account of their being constantly haunted by the specter of death for the last one year and 10 months.
28. Their Lordships of the Supreme Court took notice of the changed out-lock but it was clearly observed that death sentence is now exacted only where the murder was perpetrated with marked brutality. As for the two cases referred to it, namely A.I.R 1959 SC 572 & A.I.R. 1973 S.C 947 it was observed that the capital sentences were awarded to the accused in those cases as they were found guilty of having fired the fatal shots with fire arms. It appears from those observations that fatal shots by fire arms are marked with brutality.
29. Again in Chalose John and Anr. v. State of Kerala : 1974CriLJ796 the court reduced the sentence of death to one of imprisonment for life. The circumstances in that case were peculiar and the accused persons were found in a grip of emotional distress at the time of committing murder. Observations regarding the sentence may be aptly extracted below,
It would thus appear that the accused appellants have had to undergo the ordeal of facing two successive trials for the same offence. Apart from that we find that the circumstances which led to the occurrence also justify the imposition of a lesser penalty As would appear from the resume of the facts given above, the accused were told by Lily, mother of the first accused, that she had been abused by the wife and son of the deceased a couple of hours, before the present occurrence.
30. Another case to which reference was made is Francis, alias Poonam v. State of Kerala 1974 Cr LR (SC) 500, their Lordships of the Supreme Court observed:
Nevertheless in deciding whether the case merits the less severe of the two penalties prescribed for murder a history of relations between the parties concerned, the back ground, the context, or the factual setting of the crime, and the strength and nature of the motives operating on the mind of the offender, are relevant considerations.
31. In case of Bhagwanta v. State of Maharashtra which was decided along with this case 1974 Cr LR (SC) 500 by the Supreme Court the death penalty was maintained. The relevant observations may be read as follows:
In considering the question of appropriate sentence to be awarded, while the common frailities and tailings of ordinary human beings, to which the offender given vent may, without affecting the criminality of the acts punished, be enough to show that a lesser sentence will meet the ends of justice, Abnormal twists of the mind or indications of an obdurate and unrelenting viciousness of mind and conduct of the offender may show the need for a severer sentence.
32. Last case referred to is Ediga Anamma v. State of Andhra Pradesh : 1974CriLJ683 While referring to Jagmohan Singh's case : 1973CriLJ370 , Krishna Iyer J observed that that case adjudged capital sentence constitutional and whatever our view of the social invalidity of the death penalty, personal predilections must bow to the law as by this court declared. He also quoted with approval the noble words of Justice Stanley Mosk of California uttered in a death sentence case:
As a judge, I am bound to the law as I find it to be and not as I fervently wish it to be.
33. In the peculiar circumstances of that case, their Lordships reduced the death sentence to the imprisonment for life.
34. Mr. Shishodia learned public prosecutor referred to the following decisions : Jagmohan Singh v. State of U.P. : 1973CriLJ370 Kodavandi Moidean alias Baputty v. The State of Kerala : 1973CriLJ671 . Mohinder Singh v. Delhi Administration : AIR1973SC697
35. Jagmohan Singh's case is decided by the five judges of the Supreme Court. Palekar J who delivered the judgment of the court elaborately discussed the question of constitutionality and the propriety of awarding capital punishment raised in that case. He concluded his discussion in the following words.
All this goes to show that the representatives of the people do not welcome the prospect of abolishing capital punishment. In this state of affairs we are not prepared to conclude that capital punishment as such is either unreasonable or not in the public interest.
36. The reasons given by Rattan Lal in his book 'Law of Crimes' for awarding the sentence of death were quoted with approval. They are as fellows:
Circumstances which are properly and expressly recognised by the law as aggravations calling for increased severity of punishment are principally such as consists in the manner in which the offences prepetrated; whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated for the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counteracting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case. These considerations naturally include a number of particulars, as of time, place, persons and things, varying according to the nature of the case. Circumstances which are to be considered in alleviation of punishment are: (1) the minority of the offender; (2) the old age of the offender: (3) the condition of the offender e.g., wife, apprentice: (4) the order of a superior military officer. (5) provocation; (6) when offence was committed under a combination of circumstance and influence of motives which are not likely to recur either with respect to the offender or to any other; (7) the state of health and the sex of the delinquent. Bentham mentions the following circumstances in mitigation of punishment which should be inflicted: (1) absence of bad intention: (2) provocation: (3) self preservation; (4) preservation of some more friends: (5) transgression of the limit of self-defence: (6) submission to the menaces: (7) submission to authority (8) drunkenness: (9) childhood.
Indeed these-are not the only aggravating or mitigating circumstances which should be considered when sentencing an offender. The list is not intended to be exhaustive.
37. In Kodavandi Moidean's case the victim was walking along on the road in the company of P.W. l on the evening of January 23,1971. Accused appellant who was staying in a room near the road, suddenly came out armed with knife and inflicted a deep injury 2' X 1' X 5' on the left side of the chest of the deceased.
38. The trial judge awarded lesser penalty but the High Court enhanced it to the penalty of death. The Supreme Court observed that the discretion by the trial Court was not properly exercised along accepted judicial lires. The interference by the High Court in enhancing the sentence to the sentence of death was held to be proper From the nature of injuries their Lordships of 'he Supreme Court held that the blow inflicted by the appellant was with considerable force and the High Court was held to be right in characterising the act as brutal justifying the imposition of death penalty.
39 In Mohinder Singh's case their Lordships observed:
We are satisfied that both the learned Sessions Judge and the High Court have acted properly in awarding the death sentence. That the murder is premeditated & cold blooded, is clear from the evidence of PW. 12 to whom the appellant had stated one day earlier of his intention to do away with Santokh Singh The evidence of P.W. 12 if corroborated by the evidence of P.W. 1. The deceased was unarmed at that time and the position in which he was found by the witnesses, immediately after the occurrence, clearly shows that he could not at all have been the the aggressor. He was found in a sitting posture bleeding profusely. The number of injuries found on the body of the deceased shows that the appellant had inflicted as many as sixteen injuries on an unarmed and defenceless person. The various injuries on the hands and palms of the deceased indicate that the latter must have been desperately trying to save his life by attempting to ward off the blows with his hands. All the circumstances clearly show that the act of the appellant is a cold blooded one and that the murder committed by him was brutal in nature. Under the circumstances, the award of the death sentence was perfectly justified
40. From a discussion of these decisions it can safely be concluded that in the ultimate analysis the question of sentence depends upon the facts and circumstances of an individual case.
41 We have held above that the criminal act of the accused Sahab Ram showed complete lack of compassion and humanely feeling. We have noticed from the evidence that the accused took his victims unawares. The were unarmed and defenceless We have considered the nature of injuries, the weapon with which they were caused, the manner in which they were inflicted, the determination of the accused before the crime, his conduct during the crime and all other relevant circumstances on the basis of which it can safely be held that the three murders committed by Sahab Ram were marked with brutality. If the accused was abnormally sensitive and had unrelenting viciousness of mind it cannot be argued on his behalf that be was in a grip of emotion or he lost his balance. It cannot be treated as a mitigating circumstance to save him from the extreme penalty of death which he so rightly deserves. Mere sentence of imprisonment in the present case will be unduly lenient, and manifestly inadequate. We would here borrow the observations of Lord Justice Denning quoted in the report of Abolition of Capital Punishment. The observations are:
The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else....The ultimate justification of any punishment is not that it is deterrent but that it is emphatic denunciation by the community of a crime.
42. An argument has also been addressed at the bar that the accused has been suffering mental torture on account of being constantly haunted by the spectre of death being a condemned prisoner. There is no merit in this argument. As an under-trial prisoner there was no basis for such a feeling. The penalty of death was imposed by the Sessions Judge on 14-12-1973. According to the law of this country the sentence of death is not executable until confirmed by the High Court. We are rather of the opinion that unless the sentence of death is confirmed by this court the actual mental torture does not start and it cannot be urged that he is a condemned prisoner. It may however, be observed here that this case was ready for hearing in April, 1974. The case was adjourned twice on the request made on behalf of the accused. The court allowed two adjournments only to accommodate the counsel for the accused as to give him all possible opportunity for putting up the defence case. In this view of the matter, there is no delay and we are not persuaded to accept that the accused can have indulgence on this account to escape the penalty of death.
43. As a result of the foregoing discussion, we dismiss both the appeals of Sahab Ram. We accept the reference, while maintaining his conviction Under Section 302 Indian Panal Code, we confirm the sentence of death. The conviction and sentence under 307 Indian Penal Code are also upheld.