Delhi High Court
State (Delhi Administration) vs Ramesh Kumar on 18 December, 1991
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
JUDGMENT Dalveer Bhandarj, J.
(1) The present murder reference arises from the Judgment/Order daled 27th/28th February, 1991 passed by Shri Padam Singh, Additional Sessions Judge, New Delhi, who convicted the accused under Section 302 Indian Penal Code and awarded death sentence in Sessions case no. 64/88 arising out of Fir No. 98/88, Police Station Hauz Khas, New Delhi.
(2) The learned Additional Sessions Judge also imposed a fine of Rs. 1000.00 u/s 302 Indian Penal Code. In default of payment of fine, the accused would further suffer rigorous imprisonment for one year. The accused was also sentenced u/s 27 of the Arms ACt with two years rigorous imprisonment and a fine of Rs. 500.00 and in default of payment of fine, he shall further undergo rigorous imprisonment for six months. All the sentences shall run concurrently. The reference for confirmation of death sentence has been preferred. The accused has also filed appeal against the said judgment of the Additional Sessions Judge. The murder reference and accused's appeal is being disposed of by this Judgment.
(3) The brief facts of this case are set out as under :- One Khema Nand Bhatt, prosecution witness no. 3, resident of 24, Alipur Road, Civil Lines, Delhi, lodged a report against one Ramesh Kumar u/s 302, Indian Penal Code and u/s 25/27/54 of the Arms Act, on 34.88 at Police Station Hauz Khas. According to the, prosecution version, Khema Nand was engaged in the work of filling the forms in the Transport Authority, New Delhi at the relevant time. Both the deceased Probir Roy and Pradeep Roy were brothers. Probir Roy who used to reside at 3/4. Underhill Road, Delhi, and Pradeep Roy, the other brother was living at X-28/A, Hauz Khas, New Delhi, Along with his maternal uncle Dr. Prashant Banerjee, who was known to him for the last several years because of Probir Roy. Khema Nand Bhatt and Probir Roy used to visit Pradeep Roy frequently and sometimes in the evening, they used to take Chinese food from the catering van stationed near the Delhi Development Authority Flats Sfs, Hauz Khas. New Delhi.
(4) Khema Nand Bhatt in his statement has mentioned that on 2.4 1988, he Along with Probir Roy had gone to the house of Pradeep Roy in Hauz Khas, at about 6.30 P.M. on lambretta scooter bearing no. Dhn 9111 and remained there till 10.30 P.M. They also had dinner there and watched a movie on the V.C.R. Thereafter, all three of them had gone out on two-wheeler scooters. Khema Nand Bhatt was driving his own larobretta scooter, while both deceased brothers were on a separate Bajaj scooter no. DBF-4377. Pradeep Roy mentioned that they had dinner a long time ago and he felt like eating something. Therefore, all of them went to the Catering Van stationed near S.F.S. Dda Flats, Hauz Khas, New Delhi. There, Pradeep Roy asked the van boy sitting at the counter to give two Chinese chicken chowmein and 3 lirocas. According to the further version of Khema Nand Bhatt, Ramesh told Pradeep Roy that no food was available and nothing will be supplied to them. Again, Pradeep Roy told accused Ramesh that eatables were lying in the Catering Van and they will make the payment. Therefore, there was no reason for him in declining to supply eatables to them. The accused got irritated and repeated, that nothing will be supplied as the food bad finished. At that time, when the accused refused to supply the eatables, there was one more van boy who was preparing eatables. According to him, there were 5 or 6 customers who were also present outside the Catering Van taking the eatables.
(5) Deceased Pradeep Roy was insistent about having the eatables from the same Catering Van, therefore, he went inside the Catering Van from backside and showed the accused that eatables were lying there. Because of the insistence of the deceased PradeeRoy, the accused Raroesh got irritated and told him in Hindi. "Abhi Chowmein deta hoon.'' (1'11 give you Chowmein just now). Thereafter, the accused, Ramesh picked up the big knife (Chhura) lying in the Catering Van and slabbed the sard Chhura in the chest of Pradeep Roy. Pradeep Roy thereafter fell down outsrde the Catering Van and cried. Upon hearing his cry, the persons present near the van ran away. Khema Nand Bhatt and Probir Roy immediately went towards the backside of the Catering Van where Pradeep Roy was lying on the ground. Pradeep Roy was bleeding from his chest Probir Roy, the brother of the deceased Pradeep Roy, tried to catch bold of the accused in the van. The accused Ramesh pushed Probir Roy from inside the van and he himself came out of the van. Probir Roy again attempted to apprehend the accused. The accused was carrying the same knife (Chhura) in his hand with which he had stabbed Pradeep Roy. This time, the accused stabbed Probir Roy with the same knife (Chhnra) on the left side of his stomach, light side of the chest and on the right side below the abdomen. Probir Roy fell down in a pool of blood and the accused ran away with the Chhura in his hard. Khema Nand Bhatt raised shouts "Pakdo Pakdo" and chased him. The accused was however, successfu\ in running away towards Yusuf Sarai. Thereafter, Khema Nand Bhatt came back near the Catering Van where he saw both the deceased lying in a pool of blood Khema Nand Bhatt was very nervous, and therefore, he went on his lambretta scooter to 'he house of the maternal uncle of Probir Roy, Sushanto Banerjee, Public Witness 2. The house was found locked but Khema Nand Bhatt waited for Sushanto Banerjee till 12.45 A.M. when he arrived there. He narrated the entire incident to him and immediately thereafter both of them went to the spot. When they reached the spot, a Police official met them and told them that both the injured had been removed in the Police vehicle to the A.I.I.M S. Immediately, thereafter, both Khema Nand Bhatt and Sushanto Banerjee went to A.I.I M.S. At the hospital, one police official recorded the statement of Khema Nand Bhatt, Public Witness 3.
(6) While Khema Nand Bhatt and Sushanto Banerjee were at A.I.I.M.S. during that period Sho and Acp also came there. Thereafter, the Investigating Officer who had recorded the statements of Khema Nand Bhatt and Sushanto Banerjee came to the spot. The scene of occurrence was photographed by the police. The sample of blood Along with earth from the spot was collected and sealed on the spot. The Bajaj scooter belonging to the deceased Pradeep Roy and Catering Van were also taken into possession by the police and recovery memo (Ex. Public Witness -2/A) was prepared in regard to the seizure of the case property.
(7) The police officials received the information that the accused was likely to visit Kamal cinema on the next day i.e. 3.4.88. Accordingly, they went to Kamal cinema near Safdarjung and there at about 5 P.M., the accused was arrested by the Police. Personal search of the accused was conducted and two keys and a cash of Rs. 30.00 was recovered which were taken into possession vide personal search memo Ex, Public Witness -3/B. One Kamaljit Sharma was also with him at that time and he had also signed the said memo at point 'C'. In the early hours on 3.4.88, Khema Nand Bhatt was freed and he went home. In the afternoon, his friend Kamaijit Singh came to him. He told him about the incident and both 'of them went to the police station to know whether the culprit had been apprehended When they 'reached the police station, they were told about the information the police had received about the accuser, and thereafter, they accompanied the police to Kamal cinema. Police arrested the accused from the Paanshop in the underground parking of Kamal cinema. At that time, the accused was wearing a black shirt and a black trouser. The accused had made the disclosure statement in their presence to the police that he had kept the blood-stained Chhura close to the trees near the boundary wall of the empty space next to the wall of the General Raj School. The accused had told the police that he bad concealed the weapon over there and that he could recover the said weapon. The accused was wearing brown carterised trouser and chocolate coloured bush shirt on the night of the incident. He disclosed to the Police that be had concealed the said clothes at his house which he could recover. The accused further disclosed that his house was Id Masjid Moth, New Delhi. The disclosure statement was reduced into writing by the Investigating Officer in his presence as well as in the presence of Kamaijit Sharma and the same is Ex. Public Witness -3/C. which bears his signature and that of Kamaijit Sharma also. On the same day, the accused led them to the wall of a school and pointed out the place where he had concealed that Chhura. The accused recovered the said Cbbura which had been concealed by him under the stone in the bushes under the trees at the aforesaid place. The said Chhura was blood-stained on the front portion. The sketch of the Chhura was prepared which is Ex Public Witness -3/D which bears the signature of the accused at point A and that of Kamaljit Sharrna at point B. Recovery memo regarding the Chhura was prepared and the same is Ex. Public Witness -3/E which bears the signature of the accused as well as that of Kamaljit Sharma.
(8) On the same day, the accused took the police party to his house in Masjid Moth, and took the police to his residential.room on the top of the said house. An iron box was lying in the said room. With the help of the two keys recovered from the personal search of the accused, the locks of the room and the box were opened. From the iron box so unlocked, one chocolate coloured shirt and one trouser (pant) of brown colour were recovered. The shirt was blood-stained but the witness (Public Witness -3) did not remember whether the trouser was also blood-stained or not. He said that two clothes were taken into possession by the police and converted into a cloth parcel and sealed at the spot.
(9) Dr. Anita Saxena, (P.W. 4) Medical Officer, Department of Gynaecology, Safdarjung Hospital, New Delhi, examined the accased Ramesh Kumar on 3.4.88. The application for medical examination of the accused was produced by constables Rama Nand and Nihal Singh, is Public Witness -4/A. Dr. Anita Saxena found following injuries on the person of the accused Ramesh :-
1.Scratch marks on left thigh anterior aspect;
2.Scratch marks on right index finger;
3.Small C.L.W. about 1 c.m. long on left palm;
4.Few abrasions on chest.
(10) In the opinion of the doctor, these injuries were caused by a blunt object and duration was about 24 hours ago. The report of the doctor is Ex. Public Witness 4/B which bears her signature. Dr. Anita Saxena in her crossexamination stated that she had stated that injuries suffered by Ramesh were possible to be caused during the scuffle or by a fall from the height of 3 to 4 feet.
(11) Dr. M.S. Sagar, Senior Demonstrator, Department of Forensic Medicine, A.I.I.M S., New Delhi. He has stated in his statement that on 4.4.88, he was on duty at A.I.I.M.S. He conducted the postmortem examination on the bodies of Pradeep Roy and Probir Roy. His detailed report contained the injuries sustained by both the deceased persons and other details. In his opinion, the cause of death in the case of Pradeep Roy was shock as a result of ante mortem injuries mentioned in the post-mortem report Ex.PW5/A All the injuries found on the body of Pradeep Roy were caused by a sharp weapon. Injury no. 2 as mentioned in the post-mortem report Ex. PW-5/A was sufficient to cause death in the normal course of nature. Ex.PW5/A is in his hand and bears his signature at point 'A'.
(12) The cause of death of Probir Roy in his opinion was shock as a result of ante mortem injuries produced by sharp edged weapon as detailed in post-mortem report Ex.PW-5/B is in his hand and bears his signature. The doctor in his report has stated that during the post-mortem examination of the two deceased, he did not come across any signs of the two deceased having consumed alcohol. Dr. Prashant Banerjee, Public Witness -6, stated that on 3.4.88, he had identified the dead bodies of Pradeep Roy and Probir Roy at the mortuary of A.I.I Ms. Both the deceased were his nephews. The statement of Dr. Prashant Banerjee corroborates the testimony of Public Witness 3, Khema Nand Bhatt. Public Witness -7. Head Constables Hari Singh stated that on 3.4,88 in the midnight at about 12.15 A.M. in connection with enquiry of Dd No. 21A, he Along with H.C. Sumer Khan was going in she Govt. vehicle towards Yusuf Sarai. When they reached in front of Delhi Development Authority flats Sfs, Hauz Khas, New Delhi, they saw one van selling Chinese food which was open at that time although i ts closing time was 11 P.M. They went near the van and saw the lights in the van on, but did not see any attendant there. When they went on the rear side of the van near its window, they saw two boys lying in an injured condition outside the van and there was a lot of blood lying there. They also saw blood lying inside the van. Head Constable Sumer Khan removed both the injured boys in the government vehicle to the hospital. Dalbir Singh, Constable, Public Witness 8, was posted on duty, as duty constable at A.I.I.M.S. in the intervening night of 2/3-4.88. He corroborated the fact that Sumer Khan brought two injured persons who were declared dead by the doctor. Sumer Khan, Public Witness 9, who stated that in the intervening night of 2/3.4.88 on the receipt of Dd No 21A, at about 12.25 A.M. in the night, he Along with Hari Singh constable and constable Khazan Singh were going in the official matador no. Dbl 2683 towards Yusuf Sarai. When they reached in front of Dda Sfs Flats at Aurbindo Marg, they saw a Catering Van standing on the pavement and the lights in the said van were on and there was no person seen around the said van. The time for closing the van was about 11 P.M. and therefore be stopped the vehicle and Along with Hari Singh Constable went to the van. On the rear side of the van he found two injured persons whom he had taken to A.I.I M.S. Hari Singh was left by him on the spot to guard the scene of occurrerce.
(13) The owner of the Catering Van counted cash which was Rs. 1,263.35 and the same was handed over by him to the I.O. in his presence. The recovery memo in this regard was prepared and marked as Ex Public Witness -9/A. Public Witness -11 is Constable Rama Nand who has slated that on 3.4.88 at about 1.10 A.M. he- had gone to A.LI M.S. Along with Si Mehar Chand. He gave rukka Ex.PW 3/A under his endorsement mark A for taking to he Ps for registration of the case with the direction that he should return to the place of incident Along with the original rukka and the copy of the FIR. Public Witness -12 is Kamaljit Sharma who has stated that both the deceased Pradeep Roy and Probir Roy were his friends. On 3.4.88 around 2 or 2.30 P.M. he had gone to the house of Khema Nand Bhatt who was his friend, to see him as it was Sunday. Khema Nand told him about the unfortunate ircident in which Pradeep Roy and Probir Roy were murdered. Khema Nand Bhatt told that in a fit of anger, the van boy Ramesh gave Chhura blows to Pradeep Roy and Probir Roy and they died on that account. The accused was examined u/s 313 Criminal Procedure Code . His statement is extremely significant although in general, the accused has slated that he has been falsely roped in this case. But in answer to question no. 29, he has stated as under :- "Q.29. Why the Public Witness s have deposed against you ? A. The deceased came to me. They were under the influence of liquor and insisted for supply of campa cola, al- though 1 have instructions from my employer not to sell any eatables after 10 PM. Probably they wanted to have drinks (whisky). On my reluctance to supply the campa cola, they started grappling with me and attacked me inside the van. The other boy who was known as Kareli (his nick name) got enraged and apprehending some mischief with the cash and my personal safety stabbed the deceased persons. Public Witness s are deposing falsely. Investigation is tainted and police appears to have taken bribe from him or his guardians and has instead falsely implicated me. I am a poor man and had nobody to look after my interest. Some of the Public Witness s namely Khema Nand Bhatt and Kamaljeet Sharma are false witnesses. Police have left the real eye-witnesses who were available at the spot even as per the prosecution and have instead implicated me."
(14) The answer as given by the accused categorically shows that even the accused does not deny the incident or even the prosecution version and his only explanation is that another van boy Kareli (his nick name) stabbed the deceased persons. In support of the defense version. Anil Narula, DW-1 was examined Anil Narula is the owner of the catering van. He has mentioned that he had hired a room in house no. 388, Masjid Moth on the second floor (Barsati) for his workers numbering 4 to 5. Some of them work in South Extension van where also he carried on his business. He has further stated in his statement that the accused Ramesh was his employee and was in charge of the van He further stated that he was doing the pairvi of the case for the accused, Ramesh, as it was his moral duty because he was his employee and he is also financing the expenditure incurred in the case. He had stated that he had never enquired from his van boys as to what had happened on the date of the incident on the van and the accused, Ramesh had not come to the house on that day. He has further admitted in his statement that the accused, Ramesh Kumar had not handed over the cash of the sale of 2.4.88 to him.
(15) The learned Additional Sessions Judge has examined the entire evidence and documents carefully. The Additional Sessions Judge also examined the accused and DW-1 Anil Narula: According to the Additional Sessions Judge, the main prosecution wilness Public Witness 3, Shri Khema Nand Bhatt who had no enmity with the accused has clearly named the accused The statement of Khema Nand Bhatt. has been fully corroborated by the prosecution version as well as from the First Information Report. According to the learned Additional Sessions Judge, the defense version cannot e relied upon for the simple reason that the entire incident had taken place in the presence of the accused. The accused on repeated demands of eatables by Pradeep Roy got irritated and stabbed him, virtually without any significant insinuation, be further stabbed Probir Roy who was trying to apprehend him. The accused killed both brothers in quick succession. Even the defense version discards the prosecution version only to the extent of substituting Kareli instead of the accused Ramesh Otherwise, even the accused does not deny the incident as happened. The version of the accused in substituting the name of Kareli instead of him is totally devoid of any substance and has to be rejected. The recovery of blood-stained Chhura at the instance of the accused also clearly connects the accused with the crime and corroborates the prosecution version. The Chemical examination of the blood on the Chhura also reveals that the blood on Chhura was also of group B, which was the blood group of both the deceased. Post mortem report and doctor's statement also lend corroboration to prosecution version. Therefore, on the careful scrutiny of the oral and documentary evidence available on the record, the prosecution has proved its case beyond any reasonable doubt and defense has miserably failed to make any dent in the prosecution version.
(16) We have very carefully gone through the statements of all the prosecution witnesses and have perused all the documents on record. We have also very carefully examined the statement of the accused under section 313 Cr.P.C. and the statement of DW-1 Anil Narula. According to our opinion the conclusion arrived at by the Additional Sessions Judge is the only possible: conclusion on proper scrutiny of the entire evidence and documents on record. On all material points, the prosecution version stands corroborated. Tbe learned counsel for the accused who has very straneously and ably argued tbe case before us has tried to make dent in the prosecution version. His principal attack was that Public Witness 3 Khema Nand Bhatt was not present at the time of the incident and this he mentions primarily on the conduct of Public Witness 3. According. to him, neither be collected residents of the area nor went to the Police Station to inform about the incident. He left the place of incident while both tbe injured were lying in pool of blood and be waited for the maternal unclefor unduly long time. On careful scrutiny of the statement of Khema Nand Bhatt, we do not find any infirmity. the human conduct differs from person to person and Public Witness 3's version that after both Pradeep Royand Probir Roy were stabbed he became extremely nervous and straightaway went to the maternal uncle of the deceased is not unnatural so that we can discard the testimony of the eye-witness on this ground. It may be possible that another person in these circumstances may have behaved differently but that by itself would not cast any doubt on the veracity of the testimony of Public Witness -3 Khema Nand Bhatt.
(17) Shri Suman Kapoor, counsel for the appellant has also pointed out that Public Witness 2 was at home till 10.30 P.M. and had no programme to go out and within 10 minutes, be decided to visit the house of his relations with his minor children and wife. The criticism against the testimony of Public Witness -2 also seems to be devoid of any substance. As we have already indicated that there is no uniform pattern of human behavior and people behave and react differently in different situations and circumstances but that is no ground to discard tbe testimony of the witness whose statement is corroborated on every material particular by the other prosecution witnesses and documents on record. Shri Kapoor has also pointed out that as per the version of Public Witness 3, both the deceased had dinner before the incident whereas, as per the post mortem reports, their stomachs were empty. This submission is clearly in conflict with the post mortem reports which indicate that the total weight of stomach contents was 150 grams.
(18) Shri Kapoor also pointed out that there was no recovery of cinema tickets from the accused and further says that it is impossible for anyone to believe that the accused will go to cinema to see a movie after committing the murder. As we have indicated above, that there is no uniform human behavior and criminals do not always adhere to the norms of prudent human behavior. Unusual or strange behavior of the accused is no ground for discarding the prosecution version which is supported on all material particulars from the oral evidence and by documents on record. Another submission of Shri Kapur was that when the knife was recovered on 3.4.88, why the knife was not sent to the doctor who conducted the post mortem on 4.4.88 at 11.45 a.m. We do not attach much importance to this submission of the counsel for the appellant. According to the counsel for the appellant, the recovery of the blood-stained clothes is also doubtful because the witnesses have said that room from where clothes were recovered is on the first floor and the building in qustion is single-storeyed whereas the owner of the building DW-1 has stated that the building is three storeyed. This discrepancy in the description of the building is hardly material. In every prosecution version, minor discrepancies in the testimony of various witnesses are not unnatural but before accepting or discarding the prosecution version, we have to see whether broadly on all material points, the prosecution version is corroborated or supported by oral testimony and other documents on record or not. In the instant case, the entire prosecution version finds full support and credence from the statement of the witnesses and other documents on record. We do not find any merit in the submissions made by counsel for the appellant. On our careful and independent perusal of all the statements and documents on record, we are in complete agreement with the conclusions arrived at by the Additional Sessions Judge.
(19) Counsel for the appellant has submitted that the learned Additional Sessions Judge was not justified in awarding death sentence to the accused in this case because the entire incident had happened at the spur of the moment. The accused is a young boy. There was no motive and by no stretch of imagination, this murder can be called as premediated cold blooded murder. This case does not fall within the parameters and criterias laid down by the Hon'ble Supreme Court in various cases of rarest of rare cases in which the court ought to award death sentence We have carefully examined this submission of the learned counsel for the appellant. We are in agreement with the counsel for the appellant that the entire incident has happened at the spur of the moment and this was not a case of premeditated cold blooded murder.
(20) The accused is a young man and has no criminal background and was not involved in any other criminal case earlier. It has been stated on behalf of the State that the accused is guilty of committing murder of two young boys without there being any fault of theirs. People who do not have respect for human life, have no right to exist. Before we answer this question, we would like to deal in brief with the parameters which have been laid down by the Supreme Court in awarding death sentence and after examining those parameters, we would determine whether this case falls within the category of rarest of rare cases, where in the interest of justice, the court must award the death sentence.
(21) The legality and constitutionality of the death sentence has been agitating judicial mind for a considerable period before this country and other countries. The Counsel for the appellant has invited our attention to the decision of the Supreme Court delivered in the matter of Rajendra Prasad v. The State of Uttar Pradesh, . By the said judgment, three criminal appeals were decided in which death sentence was awarded by the High Court. The Supreme Court by a majority Judgment has reduced the death sentence to life imprisonment. The Court came to the conclusion that the retributive theory has had its day and is no longer valid. "DETERRENCEand reformation are the primary social goals which make deprivation of life and liberty reasonable as penal panacea. The current ethos, with its strong emphasis on human rights and against death penalty. The Court has observed that apart from various considerations which may weight with the court, one consideration which may be relevant in given circumstances, is the planned motivation that goaded the accused to commit the crime. Largely, in India death is caused not by a cool, calculated, professionally cold blooded planning but something that happened on the spur of the moment. In fact in faction-ridden society factions came to grip on a minor provocation and a gruesome tragedy occurs. The court further observed that special reasons necessary for imposing death penalty must relate, not to the crime as such but to the criminal. The crime may be shocking and yet the criminal may not deserve death penalty. The crime may be less shocking than other murderer and yet the callous Crimainal e.g. a lethal economic offender, may be jeoopardizing societal existence by his act of murder. Likewise, a hardened murder or dacoit or armed robber who kills and relishes killing and raping and murdering to such an extent that he is beyond rehabilitation within a reasonable period according to current psychotherapy or curative techniques may deserve the terminal sentence. Society survives by security for Ordinary life. If officers enjoined to defend the peace are treacherously killed to facrlitate perpetuation of murderous and often plunderous crimes social justice steps in to demand death penalty dependent on the totality of circumstances."
(22) There is divinity in every man and that none is beyond redemption. But death penalty, still on our Code, is the last step in a narrow category where, within a reasonable spell, the murderer is not likely to be cured and tends to rnurder others, even within the prison or immediately on release, if left alive. The patience of society must be tempered by the prudence of social security and that is the limited justification for deprivation of fundamental rights by extinguishment of the whole human being." The extreme penalty can be invoked only in extreme situations. A.P. Sen, J. who dissented from the majority view delivered a minority judgment. He has said that "it is the duty of the court to impose a proper punishment, depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality, will bring to nought the sentence of death provided by S. 302" Sen, J. has also mentioned in the Judgment that it is neither feasible nor legally permissible for the Supreme Court to give a definite connotation to the expression "special reasons" occurring in S. 354. sub-section (3) of the Code of Criminal Procedure, 1973. It is difficult to put "special reasons" in a straitjacket. Each case must depend on its own particular facts. The question of sentence must be left to the discretion of the Sessions Judge trying the accused.
(23) Counsel for the appellant has also placed reliance on a Constitutional Berch judgment of the Supreme Court in Bachan Singh etc. v. State of Punjab etc., . Again the constitutionality of death sentence came up for consideration before a constitution bench of the Supreme Court. The majority judgment was written by Sarkaria, J. A lone dissenter, was Bhagwati, J. who wrote a separate dissenting judgment.
(24) Counsel for the appellant in the said case had suggested certain aggravating circumstances and mitigating circumstances. We would like to reproduce those circumstances:-
"AGGRAVATINGcircumstances: A Court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed: (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assitance Lnder Section 37 and Section 129 of the said Code."
STATEDbroadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer ret to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other".
"MITIGATINGcircumstances : In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accased would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
(25) It is impossible to enumerate all the aggravating or mitigating circumstances because that would primarily depend on facts and circumstances of each case but certainly the abovementioned aggravating and mitigating circumstances must be given due weight. The Constitution Bench in the said Judgment has held that : "THEREare numerous other circumstances justifying the passing of the lighter sentence, as there are counter-vailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in section 354(3), Judges should never be blood thirsty. Hedging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India show that in the past, courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistence to taking a life through law's instrumentality. Though out not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
(26) In the minority judgment, Bhagwati, J. has declared the death penalty provided under Section 302, of the Indian Penal Code. read with Section 354 sub-section (3) of the Code of Criminal Procedure, 1973, as anconstitutional and void as being violative of Article 14 and 21 of the Constitution. Reliance has been placed on the Judgment of Triveniben v. State of Gujarat, . In this case also, Constitutionality of death sentence was considerej and the court unanimously came to the conclusion that death sentence under Section 302, Indian Penal Code is valid.
(27) In the background of the principles which have been laid down by the Supreme Court in large number of cases, on examining the facts of the instant case, the following circumstances have to be borne in mind :- A.The entire incident has happened on the spur of the moment; b. The accused is a young boy with no previous criminal history; c. There was absolutely no motive for committing the crime, therefore, by no stretch of imagination it can be called as a cold blooded and preplanned murder. d. It is unfortunate that a minor provocation has led to such a gruesome tragedy.
(28) After consideration of all the facts and circumstances, ends of Justice would meet, by reducing the sentence from death to one of life imprisonment The appeal filed by the appellant is partly allowed. While maintaining his conviction under Section 302 Indian Penal Code we convert the sentence of death to one of life imprisonment.
(29) Before parting with this case, we must record our deep appreciation for the able assistance provided by Mr. Suman Kapur, as an amices curiae an this case.