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21. In cross examination, PW13 stated that his statement was recorded only once after he was issued a notice under Section 160 CrPC by Inspector Prabhakar. He stated having made an entry in roznamcha at the time of taking out the record to be produced in enquiry before the ACP Karol Bagh and also recorded his arrival in the roznamcha at about 5:45pm on the day of occurrence. The place where he went to make entry of his arrival was at a distance of about 10-12 paces from the place where the deceased was sitting while making telephone call. As per PW13, after he had made his arrival entry, he heard firing and immediately he entered the room of duty officer. He stated that since SHO and the first IO did not make any enquiry from him, he did not make his S.C. NO.119/05 Page 19 of 160 pages statement till he was served with notice under Section 160 CrPC. As per PW13, when he reached the spot after hearing the firing, he found that the telephone receiver was lying on the table and not in the hand of the deceased and that blood was scattered beneath the chair on which the deceased sat. When he lifted the deceased, his clothes did not get soiled with blood of the deceased at the time of shifting the deceased from the spot. As per PW13, the deceased was shifted from the spot along with the chair on which he had been sitting and after shifting the deceased, the chair was placed back.

53. As regards PW13 HC Kareem Baksh, another witness of motive, it was argued that his presence is not corroborated by any other witness and there is no explanation for his silence till 22.03.95, despite his being a police official. It was argued that if there was no entry of his departure for going to ACP office Karol Bagh, where was the need to make his arrival entry, which shows that he had no reason to be present on the spot at the time of S.C. NO.119/05 Page 41 of 160 pages occurrence. Since prosecution failed to place on record even a copy of the alleged arrival entry of PW13, it has failed to establish presence of PW13 on the spot. PW13 states that he had received notice under section 160 CrPC from second IO Inspector Prabhakar but the latter states that he did not issue any notice. PW13 did nothing to remove the deceased to the hospital, which shows that he was not present on the spot. ASI Ram Singh and HC Ram Kishore falsified statement of PW13. As such, it was contended that testimony of PW13 deserves to be discarded.

83. But even if the said Daily Diary registers are ignored for the reason that prosecution failed to supply copies thereof to the accused, there is no reason to disbelieve the presence of PW13 Karim Baksh few paces away from the spot at the time of firing. Merely because the first IO did not record statement of PW13 promptly, testimony of this witness, which remains unshaken despite extensive cross examination, cannot be discarded. For, as described above the first IO did not investigate the case fairly and PW13 explained in his cross examination that since the first IO and the SHO did not make any enquiries from him, he did not make any statement till he was served with notice under section 160 CrPC.

5. Section 302 IPC prescribes death or life imprisonment as the penalty for murder. The provisions of the Criminal Procedure Code related to this sentencing have undergone changes in the last three decades, which indicate that Parliament is taking note of contemporary criminological thought. It is not difficult to discern that in CrPC, there is a definite swing away from death sentence and towards life imprisonment. Death sentence is S.C. NO.119/05 Page 141 of 160 pages ordinarily ruled out and can only be imposed for special reasons, as provided in Section 354(3) CrPC. Another provision in the Code which also uses the significant expression "special reason" is Section 361, which makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360 in the sense that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. It indicates that reformation and rehabilitation of offenders and not mere deterence are now among the foremost objects of the administration of criminal justice in this country.