A.S. Anand, J.
1. This appeal is directed against the judgment of the learned Sessions Judge, Anantnag, dated 18-2-1980.
2. The appellant, serving as a sepoy in the 7th Guards Unit of the Army, was posted on duty as a guardsman on the water-point at Khrew. He was posted there, on 26-8-1973. Rifle No. 7-62-MM-SLF/V-1404 along with five cartridges of 7.6-MM was issued to him. According to the prosecution version the appellant absented himself from duty and after stealing some cartridges from his officer, Shri R. C. Choudhry, went on a shooting spree near village Amlar. It is alleged that at about 3 P.M. on 28-8-1973 near village Amlar he stopped PW, Mehda Bhat and asked him as to what was contained in the bag that was being carried by the witness. On being told that the bag contained only some 'saag' (vegetable), the appellant searched the bag and thereafter desired to take a search of the pockets of the witness. The witness refused to allow the search of his pockets on which the appellant became annoyed and aimed the gun at him. The witness caught hold of the barrel of the gun and lowered it forcibly towards the ground. The appellant kicked him on the legs but the witness did not let go off the barrel of the rifle and the appellant fired some shots from it which only struck the ground. The witness freed himself after the appellant had exhausted the bullets which were in the barrel of the rifle and went to the shop of PW, Ramzan Khandey. M/s. Mohd. Khandey, Sona Khandey and Sadiq Sheikh PWs were present at the shop of Ramzan Khandey. The witness. Mehda Bhat, narrated the entire incident to them. After providing him with water, Ramzan Khanday and others sent for the village chowkidar, Sultan Ganai, PW and asked him to accompany the witness to the Police Station to lodge a report.
3. The appellant is then alleged to have come to the shop of Ramzan Khanday, PW S3. He asked him for some cigarettes which Ramzan Khanday told him were not available. The appellant thereupon became annoyed and fired a shot towards Ramzan Khanday. The shot, however, did not hit Ramzan Khanday, PW 5, but it hit Mst. Azizi, PW who was present nearby, on her private parts and she fell down. The appellant then went towards the paddy fields in the village. Ismail Khanday, Ramzan Khanday Akbar Khanday and Ali Mir after having heard the sound of gun shots, came towards the road-side from their fields. Sona Ganai on seeing those persons warned them about the presence of the accused and about his having already shot at two persons. The appellant became irritated. He fired a shot towards Ismail Khanday which hit him on his head and he tell down. Ramzan Khanday, the uncle of Ismail Khanday thereupon remonstrated and cursed the appellant for having killed Ismail Khanday. The appellant thereupon aimed a shot at Ramzan Khanday also. The shot, also hit and injured Ali Mir and Akbar Khanday, PWs who were present nearby. Sona Ganai and Sadiq Sheikh thereupon went to Police Station, Awantipora and lodged a report of this occurrence. A report at the instance of Mehda Bhat, for an offence under Section 307. R. P. C. stood already registered. After investigation, two separate challans were filed by the Police before the Committing Court An application was made by the Public Prosecutor to consolidate both the challans on the ground that both pertained to quick sequence of events and that most of the witnesses were common and therefore it would avoid inconvenience to the parties and the witnesses. After hearing learned Counsel for the parties and since there was no objection raised by the defence, both the challans were consolidated by the court. After recording some evidence, the appellant was charge-sheeted for offences under Sections 307 and 302, R. P. C. by the Committing Court and the accused was sent to the Court of Session to face his trial. The learned Sessions Judge after recording the evidence and hearing learned Counsel for the parties convicted the appellant for the offence under Sections 307 and 302 and sentenced him to suffer rigorous imprisonment for seven years for the offence under Section 307, R. P. C. and to suffer rigorous imprisonment for life for the offence under Section 302, R. P. C. Both the sentences were, however, directed to run concurrently.
4. The Sessions Judge, did not send the proceedings of the case to this Court for confirmation of the sentence of life imprisonment. The appellant, however, filed an appeal challenging his conviction and sentence.
5. In so far as the occurrence relating to the assault on PW, Mehda Bhat is concerned, Sultan Ganai, Ghulam Hussan Khanday, Mohd. Khanday, Ramzan Khanday, Sona Khanday and Sadiq Sheikh PWs have given a graphic account. They all, deposed about the manner in which Mehda Bhat was assaulted by the appellant. Each one of them narrated the occurrence in the manner noticed in the earlier part of this judgment. In their cross-examination nothing was brought out by the defence which could in any way impeach their credibility, or in any manner throw any doubt, on the prosecution version.
6. Similarly, so far as the occurrence in which Ismail Khanday and Ramzan Khanday were killed and Ali Mir and Akbar Khanday, PWs, received injuries, the prosecution version as noticed in the earlier part of his judgment, stands fully corroborated by Sadiq Sheikh, Ali Mir, Ghulam Mohd. Haji, Ghulam Nabi Wani, Akbar Khanday and Rehman Sheikh, PWs. All these witnesses have not only corroborated the prosecution version but also the deposition of each other in all material particulars, Mst. Azizi, PW herself had received a bullet shot on her private parts when she was present at a distance of about 10 yards from the shop of Ramzan Khanday. She deposed about it and received support from the other prosecution witnesses including Ghulam Mohd. Haji, PW, in whose presence blood-stained earth, clothes of the deceased, and some empty cartridges were recovered and seized by the police.
7. The appellant was identified at. an identification parade conducted by Shri Nazir Ahmad Kakroo, Judicial Magistrate, Anantnag, who appeared in the witness-box and proved his certificate Ex. PW 22/1. Akbar Khanday, PW. was examined by Dr. Abdul Rashid on 28-8-1973. He had also examined Ali Mohd. Mir, PW, and had found an injury on his left wrist joint with two wounds communicating with each other. He also found a wound on the left knee joint of Akbar Khanday, He opined the injuries to have been caused as a result of gun shots. He proved his medical certificate Ex. PH in respect of Akbar Khanday. He deposed that on examining Ali Mohd., PW, he did not find any orthopaedic problem. He proved the injury statement Ex. PDD in respect of Ali Mohd. Mir. Mehda Bhat was medically examined by Dr. Bashir Ahmed who found as many as five injuries on his person. He proved certificate EXD in respect of injuries on the person of Mehda Bhat. In the cross-examination a suggestion was put to the witness that the injuries suffered by Mehda Bhat could be self suffered and he replied in the negative. Post-mortem on the dead bodies of Ramzan Khanday and Ismail Khanday was conducted by Dr. Ghulam Rasool on 29-8-1973. He proved the post-mortem report Ex. P. 1 in respect of Ramzan Khariday and Ex. PL in respect of Ismail Khanday. He opined that death had been caused due to shock and haemorrage and the injuries had been caused by gun shots and were sufficient in the ordinary course of nature to cause death in both the cases.
8. The first information report at the instance of Mehda Bhat, Ex PW 1/1 was recorded by Mohd. Yusuf Khan. PW. SHO, Police Station, Awantipora,
9. Major G. Nautigal was posted as a Captain in the 7th Battalion Guards at Khrew, Pampora in the year 1973. He deposed that the appellant was serving in his Battalion and that on 26-8-1973 he had posted the appellant on guard duty at Khrew water-point in his capacity as adjutant. Rifle No. 7.62 MM-SLK No. V-1404 had been issued to the appellant for his duty. Five rounds of cartridges of 7.62 MM were also issued to him. The seized rifle Ex. PW 10/1-A, which had been seized from the appellant in presence of Ghulam Nabi Wani, PW, at about 6 P.M. on 28-8-1973 was identified by the witness as the same rifle which had been issued to the appellant for his duty. The witness added that at about 8 PM on 27-8-1973 the appellant was found missing from his duty. On being so told, he went to the spot and there learnt that the appellant had stolen 30 rounds of cartridges from his superior officer He made a report about this fact to his superior officer, Shri R. C. Choudhry. The witness produced the register pertaining to the issuance of weapons and aft serial No. 4 of that register, the entry regarding the issuance of the seized rifle exists, The ballistic expert, Shri L. A. Kumar to whom the seized rifle and the empty cartridges recovered from the spot, were sent, gave his opinion to the effect that the five cartridge cases marked Cl, C2, C7. C8 and C9 (the crime cartridges) had been fired through the seized rifle and from no other rifle. He asserted that the cartridges which had hit the ground when, the appellant is alleged to have attempted to shoot Mehda Bhat i e. cartridges C3, C4, C5 and C6 however, could not be connected with the rifle in question due to lack of sufficient individual characteristic marks.
10. The investigation in the case was conducted by Mohd. Jabar, Circle Inspector, PW, who gave an account of the different stages of investigation and proved various seizure memos relating to the seizure of the rifle, the empty cartridges, the blood-stained earth, the clothes of the injured and the clothes of the deceased etc.
11. Mr. Tassadiq Hussain learned Counsel for the appellant has not challenged the prosecution story noticed in the earlier part of the judgment. He has also not impeached the credit of any witness and as a matter of fact has not questioned the appraisal of the evidence by the trial court. In view of this. I have refrained from reproducing the evidence of the prosecution witnesses which have been reproduced by the trial court in the judgment, or discussing them.
12. The evidence led by the prosecution has clearly established that the appellant, a sepoy in the 7th Guards. was Issued the seized rifle, along with five cartridges. It also stands established that the appellant stole a large number of cartridges from his officer Shri R. C. Choudhry and after absenting himself from duty went towards village Almar and there attacked Mehda Bhat, PW. injured Mst, Azizi, Akhar Khanday and Ali Mir, PWs and shot dead Ramzan Khanday and Ismail Khanday. Learned Counsel for the appellant has not questioned this aspect of the prosecution case at all and in view of the trustworthy and unimpeachable evidence on the record rightly so. I, therefore, have no hesitation in holding that the prosecution has brought home the guilt to the appellant for the offence under Section 302, R. P. C, as well as for the offence under Section 307, R. P. C., beyond every reasonable doubt. His conviction for the aforesaid offences is well merited,
13. Mr. S. T. Hussain has, however, argued that from the sequence of events it could be easily inferred that the appellant was insane or at any event bordering on insanity, who had acted under an irresistible impulse and was not liable to be convicted for the offence under Section 302/307 R. P. C. He has in this manner sought the benefit of Section 84, R. P. C. in favour of the appellant.
14. I am afraid I cannot agree with the submission of the learned Counsel. To me it appears that this argument which is a belated afterthought and for which there is no basis available on the record, is an argument of despair raised to somehow or the other secure some benefit for the appellant. It is settled law that a plea of insanity must be raised and established during the trial. The onus of establishing insanity is on the party raising the plea and it must establish it either by direct evidence or by circumstancial evidence. No doubt the burden to be discharged by an accused who sets up a plea of insanity has to be discharged by him only by establishing preponderance of probabilities and the burden of proof on him is not the persuasive burden. It is no higher than that which rests upon a party to civil proceedings. The appellant has nonetheless to establish his plea, where the prosecution has discharged the initial onus of proving that the accused is the author of the crime alleged against him. After the prosecution has discharged the initial onus, the onus shifts to the accused to establish his plea, where he claims benefit of an exception, and he must discharge that onus by establishing preponderance of probabilities. In the present case, no such plea, as has been raised by Mr. Hussain was raised by the appellant during the trial. As a matter of fact, not. a single suggestion was put to any of the witnesses regarding it. The plea was not even raised in the statement recorded under Section 342 Cr. P.C. The appellant was serving as a sepoy in the Army and no suggestion was put even to his immediate superior. Shri Nautigal, PW, to the effect that the appellant used to have any such impulse or was bordering on insanity. The fact that the appellant had been posted on guards duty by his immediate superior at the water point is quite indicative of the fact that the appellant was a person of normal senses because otherwise his immediate superior would not have entrusted him with that duty. There is not even a suggestion, much less, an iota of evidence, on the record, from which even a remote inference is available that the appellant was insane at the time of the occurrence or that he had acted under any irresistible impulse. I am not at all impressed by the argument of Mr. S.T. Hussain that had the appellant not been insane or mad he would not have gone about killing persons without any motive. Of course, no motive has been established by the prosecution but the absence of motive does not in any manner cast any doubt on the prosecution case. Why a person acts in a particular manner would be known to him only. A person may act in a very peculiar manner, not expected of a normal man, and yet he may be completely sane. There is nothing on the record to show that apart from shooting at various persons, the appellant was acting in any abnormal manner on the day of the occurrence and therefore, it is reasonable to say that even the circumstances established on the record, do not show that any plea of the nature envisaged by Section 84 R. P. C. is available to the appellant. May be, as argued by the learned Additional Advocate General, the appellant who was posted on guards duty ,only one day prior to the occurrence, and had been provided with the rifle tried to experiment and exhibit his 'might' and became 'Trigger happy'. The fact however, remains that the record does not show that there was any trace of Insanity so far as the appellant is concerned. He committed two murders and injured four persons in broad day light. He acted in a reckless manner and acting in a reckless manner cannot be equated with acting in a fit of insanity or under an irresistibly impulse. There is nothing on the record to show that the appellant either acted out of an irresistible impulse or was insane on the date of the occurrence and I accordingly reject the plea.
15. Mr. S.T. Hussain then raised 3 legal plea. Urged the learned Counsel, that under Section 374, Cr. P.C. it is a mandatory requirement of law that the Sessions Judge, after sentencing a person to death or to life imprisonment, must make a reference to the High Court and that since in the instant case, no reference has been made to the High Court, the impugned judgment stood vitiated and entitled the appellant to an order of acquittal. Learned Counsel further submitted that the irregularity in no' making a reference to the High Court Under Section 374, Cr. P.C. was not curable under Section 537, Cr. P.C. because the prejudice to the appellant was writ large, since, argued the learned Counsel, the scope of enquiry by the High Court while dealing with a reference is much wider as compared to an appeal and a court of reference has much wider powers than a court of appeal.
16. The argument of the learned Counsel, on the surface, appears to be very appealing but it does not bear closer scrutiny. Section 374, Cr. P. C, reads:
374. Sentence of death or life imprisonment to be submitted by Court of Session.- When the Court of Session passes sentence of death or life imprisonment, the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court.
A plain reading of the Section shows that under Section 374 Cr. P.C., the Sessions Judge does not make any 'reference' to the High Court but only 'submits' the proceedings for confirmation of the sentence and while dealing with confirmation of sentence, the High Court does not act as a court of reference but only as a court of confirmation. Chapter XXVII comprising Sections 374 to 380 is headed 'of the submissions of sentences for confirmation', while 'references' are dealt with in Chap, XXXII. Any reference made under the Code is for a decision and not for confirmation of a decision already taken, unlike the proceedings under Chap. XXVII. There is a clear distinction between a court of reference and a court of confirmation under the Cr. P.C. and these are two distinct and different types of jurisdiction While dealing with the submissions under Section 374, Cr. P.C. the High Court does not act as a court of reference, even though such submissions are popularly, though wrongly so-called. The distinction between a court of reference and a court of confirmation is quite marked in the Cr. P.C. and the two are neither identical nor should one be confused for the other. This distinction Is borne out from the language of various sections of the Code of Criminal Procedure, as for example, Section 520 Cr. P.C. which reads as follows:
Any court of appeal, confirmation reference or revision may direct any order under Section 517. Section 518 or Section 519, passed by a court subordinate thereto, to be stayed pending consideration by the former court, and may modify alter or annul such order and make any further orders that may be just.
clearly brings out this distinction. This position is also clear from Section 522, Cr. P. C, Thus it is obvious that in the Cr. P.C. a clear distinction has been made between a court of reference and a court of confirmation and as such it is wrong to say that when the High Court is dealing with the submissions under Section 374, Cr. P.C. it is acting as a court of reference. It, in. fact, acts on the appellate and not on the original side. Under Section 374, Cr. P.C.. a Session? Judge does not refer a disputed point or case to the High Court for decision. He himself decides the case and in case of conviction of the accused, he himself passes the sentence. However, where the sentence passed by him is one of death or life imprisonment, then the mandate of Section 374 Cr. P. C, comes into play and he is required to submit the proceedings to the High Court and the sentence is not to be executed till it has been confirmed by the High Court.
17. No doubt, Section 374, Cr. P.C. give? a mandate to the Sessions Judge to submit the proceedings for confirmation of the sentence of death or life imprisonment, a strict non-compliance with the requirement however would not vitiate the judgment, unless of course, it is shown that the accused has been prejudiced by the omission to submit the proceedings to the High Court. It is the content and not the form in which the mandate of Section 374, Cr. P.C. is carried out which is of relevance and therefore it is important to bear in mind the object of the section. The object of Section 374, Cr. P.C. appears to be to ensure that in a case of serious nature where the life of citizen is involved, the evidence should be properly scrutinised by the High Court and that the High Court should give the same attention to a case submitted to it for confirmation of the sentence where the sentence imposed is life imprisonment or death, even if no appeal has been filed by the accused. As a court of confirmation, the High Court performs the same functions as it does on its appellate side, I say so, because under Section 376, Cr. P.C. this Court has, on proceedings being submitted to it by the Court of Session, the power not only to confirm the sentence but also to set aside the conviction and acquit the accused or order a new trial on the same or the amended charge or to convert the conviction into one of lesser gravity or to reduce the sentence of death to imprisonment, for life, while maintaining the conviction. In other words while dealing with the submissions under Section 374, Cr. P, C. this Court exercises all such powers which are exercisable by a court of appeal. The decision both of the appeal against conviction and sentence where there is one and the proceedings for confirmation of sentence is an indivisible decision and has of necessity to be identical and not divergent. The submission of proceedings for confirmation of sentence becomes very relevant and important where there is no appeal filed by an accused. In that event the sentence imposed upon the accused cannot be executed, unless the High Court confirms the sentence and in a given case the continued detention of the accused, without the imposed sentence being confirmed, may render the detention questionable. However, where there is an appeal filed by a convict against his conviction and sentence, the submission under .S. 374, m my opinion, becomes somewhat unnecessary in the sense that it gets decided automatically with the appeal. Thus whether or not, the failure of the Sessions Judge to submit the proceedings for confirmation of the sentence under Section 374 has, in fact, occasioned any failure of justice or prejudice to an accused, will have to be determined on the facts and circumstances of each case, keeping in view whether or not. an appeal has been filed by the accused against his conviction and sentence in the High Court. Where an accused has filed an appeal against his conviction and sentence, the non-submission of the proceedings for confirmation of the sentence would only be a curable irregularity under Section 537, Cr. P.C. and would not vitiate the judgment (See in this connection with advantage AIR 1944 Sind 83 : 1944-45 Cri LJ 598 (FB) and AIR 1951 Punj 57 : 1951-52 Cri LJ 1041.
18. In the instant case, the appellant has filed an appeal challenging his conviction and sentence before this Court. All the proceedings of the trial court are before this Court, even though the Sessions Judge has not submitted the proceedings for confirmation of the sentence of life imprisonment under Section 374, Cr. P.C. Sitting as a court of appeal, the entire evidence in the case has been reappraised and scrutinized with a view to determine whether or not the conviction and sentence of the accused is justified. Had there been a submission for confirmation of the sentence, no other attention could have been paid to the case. In these circumstances, the omission of the Sessions Judge to submit the proceedings for confirmation of the sentence of life imprisonment imposed on the petitioner cannot be said to have in any manner prejudiced the appellant and as stated earlier, the irregularity committed by the Sessions Judge, in the facts and circumstances of this case, is a curable irregularity under Section 537, Cr. P.C. and it has not vitiated the judgment, I, therefore, repell the argument of Mr. S.T. Hussain to the contrary.
19. After having given my careful consideration to all the submissions made at the bar and after going through the evidence on record, I am satisfied that the prosecution has brought home the guilt to the appellant beyond a reasonable doubt and his conviction and sentence for the offence under Section 307/ 302, R. P. C. is well merited and fully justified. The appeal, therefore, fails and is dismissed as such.
20. Before parting with the judgment I would, however, like to observe that the learned Sessions Judge has not applied his mind to various statutory requirements and has committed more than one lapses which cannot but be viewed with concern. Not only, did the Sessions Judge not submit the proceedings to this Court for confirmation of the sentence of life imprisonment under Section 374, Cr. P.C. but from a perusal at the record, I find that he did not even comply with the requirements under Section 371(2), Cr. P.C. A Sessions Judge of any standing should be more careful particularly in cases where the life and liberty of a citizen is at stake. The lapses committed by the Sessions Judge reflect adversely on his judicial knowledge. It is hoped that he shall be more careful in future. A copy of this judgment shall be placed on the personal file of the Sessions Judge and communicated to him also.
G.M. Mir, J
21. I agree.