J.N. Wazir, C.J.
1. Dooni Chand accused was committed to the Court of Session, Srinagar, to stand his trial Under Section 302 Ranbir Penal Code for the murder of Lai Chand, Under Section 307 for attempting to murder Lal Chand's wife, Mst. Bundi, and Under Sections 309 and 449 R. P. C. The accused pleased not guilty to all these charges. The learned Sessions Judge after examining the evidence produced by the prosecution found the accused guilty Under Section 302 and sentenced him to death. He was also convicted Under Sections 307, 309 and 449 and sentenced to ten years' rigorous imprisonment with a fine of Rs, 10, to nine months' simple imprisonment and to seven years' rigorous imprisonment with a fine of Rs. 10, respectively. The sentences of imprisonment were ordered to run concurrently. The accused has appealed against his convictions and sentences and the Sessions Judge, has made the reference for confirmation or the sentence of death passed on the accused.
2. The prosecution case briefly stated is as follows: Dooni Chand accused and Lai Chand deceased were both employed in the Jammu and Kashmir Police. They hailed from village Dachan in Kishtwar Tehsil. It is alleged that Dooni Chand, accused had eloped with Mst. Bundi from Kishtwar and wanted to marry her. He brought her to Kashmir but Lai Chand prevailed upon him and induced him to part with the girl on payment of monetary consideration. Lai Chand succeeded in getting the girl and he married her. She had two issues from this wedlock.
It is alleged that the accused harboured ill feelings, towards Lai Chand, who had deprived him of the girl he wanted to marry. On the night between 4th and 5th January, 1959 the accused was posted on duty as an armed guard at Lai Mandi. His duty started at 9 p. m., and he had relieved foot constable, Nazir Ahmad. On that day it had snowed very heavily and it was snowing when the accused was on duty. He absented himself from duty and went towards Raj Bagh where 'the deceased was residing in a garden hut. The accused knocked at the door and requested Lai Chand to open it. Lai Chand was lying on his cot and beside him was his wife Mst. Bundi lying on a separate cot with her two children.
The deceased on hearing that some one was calling him unbolted the door and allowed the accused to come in. The accused told him that he was feeling cold and had come to warm himself. He was given an electric heater and was asked to make himself comfortable. Lai Chand slipped into his bed a train and niter a while went 'A, to sleep. His wife kept awake as she had to close the door after the accused would leave the Louse. Dooni Chand, it is alleged, went out on the pretext that he wanted to make water. After some time he entered the room again armed with a gun. Mst. Bundi watched him entering the room. He aimed the gun at Lai Chand, fired at him and the bullet pierced through his left lung and struck the wall.
At this Mst. Bundi got up and told the accused as to what he had done. The accused replied that he had killed her husband and that he was going to kill her and her children as well. Soon after he fired another shot which hit Mst. Bundi in her breast. Lai Chand raised an alarm and called Hari Ram who was sleeping with his family in the ground floor of the hut. Hari Ram on hearing the noise came up. While he was climbing the stairs the accused fired another shot with which he injured himself and fell flat on the ground. Hari Ram on entering the room found Lai Chand and his wife in a pool of blood and he accused lying on the ground with a bullet injury in his neck. The gun was lying by his side. Lai Chand, it is alleged, narrated the whole incident to Hari Ram and asked him to snatch away the gun from the accused lest he might kill his children. The deceased also asked Hari Ram to report the matter to the Deputy Inspector General of Police who was residing at a short distance from the place of occurrence.
Hari Ram took the gun from Dooni Chand and, went to inform Wazir Lachman Das, D. I. G.. who was sleeping in his bungalow. Wazir Lachman Das got up and was informed of the incident by ' Hari Rum. He unloaded the gun and recovered one empty cartridge and two live cartridges from the gun presented to him by Hari Ram. He along with his orderly. Abdul Ahad Dar and gardener Guffar Butt proceeded to the spot and found Lai Chand and his wife in a pool of blood and Dooni Chand lying injured 01 one side of the room. Lal Chand narrated the whole incident to the Deputy Inspector General of Police and named Dooni Chand as the culprit. Wazir Lachman Das sent for Doctor S. M. Krishnan who was residing in the neighbourhood. He administered first aid to the injured persons.
Doctor Peerzada Abdul Majid also reached there shortly thereafter, on being called by Wazir Lachman Das. He advised Wazir Lachman Das to remove Lai Chand and his wife immediately to the hospital for treatment. Abdn1 Ahad Dar, IInd Constable was sent to the Police Station Sher Garhi for lodging the first information report and also for calling police force for the removal of Lal Chand and his wife to the hospital. The first information report was lodged at the Police Station at about 12 35 A. M. On receipt of the report Mr. Ghulam Rasul Danposh, Inspector of Police, Station House Officer, Shergarhi. repaired to the scene of occurrence and made arrangements for the removal of Lai Chand and his wife as also the accused to the hospital. On reaching hospital Lai Chand was examined by Dr. Habib Ullah Kanth who found that he had expired.
The dead body was sent to mortuary and o the following morning post mortem examination was performed by Dr. M. A. Naquishbandi. Mst. Bundi was admitted as an indoor patient into the hospital Her injuries were also examined by Dr. Naauish bandi. The accused was also examined by the same doctor and his injuries were attended to. He was kept in the hospital under guard. On 5th January Kotwal Tek Chand, City Magistrate, Srinagar, was deputed by the Additional District Magistrate, Srinagar, on the application of the 'Police for recording dying declaration of Mst. Bundi and .also the confession of Dooni Chand accused. He proceeded to the hospital and recorded dying declaration of Mst. Bundi and the confessional statement of Dooni Chand accused. Doctor Naquishbandi who performed the autopsy found the following injuries on the person of Lai Chand deceased:
1. 1/4' in diameter wound circular shaped over the outer part of left chest near the left shoulder joint below the outer third of left clavicle. It was deep and filled with blood clot (External wound).
2. Two lacerated wounds over the back oft chest on left side of the chest at the scapular region, 2' X 1 1/2', 1' X 1/2' each. The margins were found everted and there was bleeding,
3. Fracture of left clavicle sit the outer third.
4. The tract of the wound is from above the outer one third of left clavicle, downwards and backwards, fracturing the left two ribs posteriorly and the left scapula.
5. The left upper lobe of the lung had been pierced through.
6. A branch of left subclavian artery was torn.
7. Two pints of blood were found in left pleural cavity.
According to the doctor the death was due to shock and haemorrhage caused by bullet injury.
3. The police after completing the investigation and after the accused was discharged from the hospital challaned him. He was convicted and sentenced by the Sessions Judge, Kashmir, as stated above.
(4-6) The prosecution in order to prove its case produced Dr. M. A. Naquishbandi who performed the post mortem examination on the dead body of the deceased. In the opinion of the doctor the death was caused by shock and haemorrhage resulting from the bullet injury. All the injuries according to the doctor, were ante mortem and could be caused by a single bullet shot. There are a number of witnesses produced by the prosecution and Mst. Bundi is the eye witness of the occurrence. Her statement is very material and contains meticulous details of the incident which took place on that fateful night. (His Lordship then discussed the evidence and continued as follows:) In our opinion the evidence establishes beyond reasonable doubt the guilt of the appellant and the learned Sessions judge quite rightly convicted him on all the charges framed against him.
7. Counsel for the appellant has argued that Under Section 309. Cr.PC, ,it was necessary that the assessors must have been asked to state distinctly whether the accused was guilty of the offences under which he had been charged. That was' not done in the present case and a general question in regard to all the charges was put to the Assessors and their opinion was not distinctly recorded in respect of each charge which, according to the learned Counsel, was a clear violation of the mandatory provisions of Section 309, Cr P. C, Vitiating the whole trial. In support of this contention reliance was placed on Prem Nath v. State of Delhi, (S) : 1956CriLJ121 , in which it was laid down that the not taking of the opinion of the assessors in respect of all the charges for which the accused was tried is certainly a grave violation of an imperative provision of the Code.
A conviction in respect of a charge on which the opinion of the assessors was not at all taken would be clearly illegal, Another case of this Court was relied upon which is reported in Habib Ruther v. State A.I.R. 1959 J and K 11, wherein it was held that where no opinion had been called from the assessors on any charge whatsoever and all that the assessors had done was to have expressed their opinion about the whole in a general manner the conviction and sentence of the accused must be set aside. Under Section 309, Cr.PC, the Sessions Judge is bound to record the opinion of each assessor in respect of all the charges for which the accused had been tried and if he does not do so it would certainly amount to violation of an express provision of law as to the mode of trial and would be .sufficient to vitiate the trial. But in the present case the Sessions Judge has invited Opinion of each assessor in respect of all charges of which the accused was being tried.
The assessors also have expressed their Opinion in respect of each of the charges levelled against the accused. It is a matter to be decided whether the irregularity alleged is a material one and amounts to improper mode of trial which would vitiate the trial. We do not think that the express provisions of Section 309, Cr.PC, have in any way been disregarded in this case. In the Supreme Court case the opinion of the assessors had not been at all invited in regard to certain charges of which the accused was being tried. There was, therefore, definitely a violation of the express provisions of Section 309, Cr.PC That is not the position in the present case. In the instant case opinion of ach assessor has been asked in respect of each of the charges for which the accused was tried. Each assessor in reply has specifically mentioned the charges and has stated that the charges are fully brought home to the accused.
In determining whether the provisions of Section 309, Cr, P. C, have been properly followed In a case or not it is necessary for the court to se& whether in inviting opinion of the assessor in respect of a charge or charges framed against the accused the assessor has answered the question in a manner which would indicate that he has understood the charge or charges for which the accused is being tried and whether having applied his mind to the evidence adduced in the case he has expressed his opinion in respect of the charge or charges levelled against the accused. If from the opinion recorded by the assessor it can be gathered that he has applied his mind and given an intelligent reply in respect of all the charges framed against the accused the conclusion will be inescapable that the , provisions of Section 309 Cr.PC, are properly complied with. In the instant case, as pointed but above. assessors have enumerated the charges framed against the accused and have opined that the charges are fully proved.
Under these circumstances it cannot be said that there has been a violation of the provisions of Section 309, Cr.PC, and the trial is vitiated. The v Supreme Court authority and the authority of this Court referred to above have no application to the present case inasmuch as in those cases the opinion of the assessors in respect of all the charges was not at all called by the Sessions Judge which clearly amounted to violation of the mandatory provisions of Section 309, Cr.PC, and vitiated the trial. We are, therefore, of the opinion that in the present case tile provisions of Section 309, Cr.PC, have been complied with and there is no irregularity committed by the Sessions Judge in inviting opinion of the assessors in respect of the charges for which the accused was tried.
8. Lastly, it has been argued that the accused is a young man of 28 years and the Sessions Judge keeping in view his youth ought to have awarded the lesser penalty Under Section 302, R. P. C. In a murder case death sentence should ordinarily be imposed but the trial Judge has discretion to impose lesser punishment of life imprisonment for reasons which should be recorded by him. The reasons for passing the lesser sentence must be adequate. In the present case the accused is a young man of 28 years. His senses are matured and it cannot be said that he was not able to realise the gravity of the offence which He was committing. Moreover, the accused was a member of Police Force and was expected to fully understand the consequences of his criminal act. If he had been a young lad incapable of fully appreciating the serious consequences of a criminal act, the matter would, perhaps, have been different but a man of 28 years of age serving in Police Force cannot take advantage of the fact that he was unable to understand the gravity and heinousness of his criminal act.
In this case we are dealing with a man who , has deliberately and brutally murdered a young man who was sleeping and was defenceless. He had further tried to kill a mother of two children who was in a helpless state. In a case like this we see no extenuating circumstances for awarding the lesser penalty. The accused, in our opinion, has been rightly convicted Under Sections 302, 307, 309 and 449 R. P. C, and the sentences awarded are well deserved. This appeal is, therefore, dismissed and the sentence of death passed on the accused is confirmed.
9. The accused shall be informed of this order in Jail.
K.V. Gopalakrishnan Nair, J.
10. I agree.