BANERJEE - (1.) ON a reference to the High Court by the principal judge of the sessions court at Bombay for confirmation of an order of death sentence passed against the appellants herein in sessions case no. 477 of 1996, the High Court recorded its finding in the affirmative to the order of conviction and sentence passed by the learned sessions judge. It is this order of confirmation which is before this Court presently under consideration.
(2.) SIGNIFICANTLY, accused nos.4 to 10 are absconding and the matter was dealt with thus against accused nos.1, 2 and 3. Since the matter has been argued before this Court in rather great a length, we think it fit and proper to note the charges so framed in extenso at this juncture and before entering on to the arena of merits. The charges read as below : "Firstly-That you no.1 along with nos.2 and 3 above named and absconding accused nos.4 to 10 above named on the aforesaid date, time and place and prior to it agreed to murder Harish Vallabhdas Bhatia hatched a criminal conspiracy to that effect and in pursuant to the agreement you no.2 and 3 above named, did commit murder of said Harish Vallabhdas Bhatia by means of pistol and revolver and inflicted such bullet injuries on his person as were sufficient in ordinary course of nature to cause his death and in fact caused his death and thereby you all committed an offence punishable under section 120-B read with 302 of I.P.C. and within my cognizance. Secondly - Alternatively you nos. 2 and 3 above named on or about 13th June, 1995 at 20.20 hrs., on the ground floor of Lalchand Bungalow at Shankar Lane, Kandivali (W), Mumbai in furtherance of common intention of you both did commit "murder by causing death of Harish Vallabhdas Bhatia, by means of pistol and revolver causing bullet injury on the person of said Harish Vallabhdas Bhatia, which were sufficient in the ordinary course of nature to cause his death and in fact caused his death and thereby committed an offence punishable under section 302 read with 34 of I.P.C. and within my cognizance. Thirdly - That you nos.2 and 3 above named, on the aforesaid date, time and place, did possess, carried and used the fire arms to wit committing the murder of deceased Harish Vallabhdas Bhatia by the said fire arms and thereby committed an offence punishable under section 27(3) of the Arms Act and within my cognizance." The charge thus itself records two counts, namely, on the first count under section 302 read with section 34 of IPC and on the second count under section 27(3) of the Arms Act, 1959. It is at this juncture, however, it would be convenient to advert to the true purport of the punishment of death and the social ramifications therefor. On this score we, however, deem it expedient to note an earlier decision of this Court in the case of Jai Kumar v. State of M.P. (in which one of us was a party: U.C. Banerjee, J). In Jai Kumar (supra) this Court while considering the above stated as below : "Section 302 of the Indian Penal Code authorises the court to punish the offender of murder with death or imprisonment for life - the statute therefore has provided a discretion to the court to sentence the offender either with death or with imprisonment for life: obviously, a serious decision and a heavy burden imposed on the court - This discretion conferred, however, shall have to be thus exercised in a manner and in consonance with the concept of law so as to sub-serve the ends of justice and it is on this aspect of the matter that in a long catena of cases this Court in no uncertain terms laid down that the award of death sentence though within the ambit of jurisdiction of the courts, but that does not clothe the courts to exercise the same in a manner indiscriminate. This Court has been candid enough to record on more occasions than one that it is only in the rarest of the rare cases that this discretion as regards capital punishment ought to be exercised. Ours is a civilised society - a tooth for a tooth and eye for an eye ought not to be the criterion; the civilisation and the due process of law coupled with social order ought not to permit us to be hasty in regard to the award of capital punishment and as a matter of fact the courts ought to be rather slow in that direction. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub-serve the basic requirement of the society. It is a requirement of the society and the law must respond to its need. The greatest virtue of law is its flexibility and its adaptability, it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day. In the present day society, crime is now considered a social problem and by reason therefore a tremendous change even conceptually is being seen in the legal horizon so far as the punishment is concerned. One school of thought on this score propagates that the function of the law court is that of a social reformer and as such in its endeavour to act as such, question of deterring punishment would not arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeping into the society, the society would perish to the detriment of its people. The other school, however, expressly recorded and rather emphatically that unless the severest of the severe punishments are inflicted on an offender (obviously depending upon the nature of the crime) the society would perish. The other school professes that since one has taken the life of another that does riot mean that his life shall have to be taken but during the trial if it transpires the method and manner or the nature of the activities which have resulted in the elimination of a human being from this world, there should not be any laxity on the part of the law courts, otherwise people will and in turn the society will be engulfed in a false sense of security of life in the event of there being the most heinous crime of the earth. The law courts as a matter of fact have been rather consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe, ought not to be passed but that does not even clothe the law courts with an option to award the sentence which would be manifestly inadeouate having due regard to the nature of the offence since an inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for tooth, rather having its due impact on the society: while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large." Turning attention on to the second count, to wit, the charge under section 27(3) of the Arms Act, 1959 first, and for the purposes of proper appreciation of the submissions on this count as well, we deem it fit to note the provisions as provided in the statute and the same reads as below : "27. Punishment for using arms, etc. - (1)............ (2)............. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 27 and such use or act results in the death of any other person, shall be punishable with death."
(3.) BEFORE, however, detailing out the applicability of section 27(3) of the Act, we do feel it expedient to advert to the factual backdrop of the matter presently before us. On the contextual facts it appears that on 13th June, 1995 at about eight o'clock in the evening, the deceased, his mother, father, maid Pramila and Anjana were watching television in the hall. Shortly, thereafter, however, somebody pressed the doorbell of the house and Pramila, the maid, went to see as to who was at the door. As the maid was coming back, Anjana also went to gallery to see who was at the door whereupon she saw that one person was standing on the step near the grill and the other person was standing below the step. She asked the person standing on the step as to who he was. He gave his name as Arvind. She asked him as to what work he had. He told her that he was a friend of Harishbhai and that he had some work with Harishbhai. At that time Harish on being told by Pramila came to the passage. He went to the grill of the gallery and he asked the person standing on the step as to who he was. That person was talking in a very low voice. In order to ascertain as to what he was talking Harish leaned on the grill and that person immediately put his hand inside the grill and caught hold of the kurta of Harish just to give a violent jerk. He then put his second hand inside the grill. At that time Anjana saw that he was holding a pistol in his right hand and pointed it at the abdomen of Harish and started firing. At that time the second person climbed on the grill. He also had a pistol in his hand. He started firing on the head of Harish and Harish collapsed thereafter. This collapse of Harish dumb-founded Anjana by reason wherefor it took about a minute or so before Anjana started shouting and ran inside. She went to the western balcony to see them where she heard the sound of high acceleration of a vehicle in which accused nos.2 and 3 fled from the place of occurrence. Harish was then shifted to Bhagwati Hospital, where however he was pronounced dead. Complaint of Anjana came to be recorded immediately thereafter i.e. on the same day at about 10 p.m. The records depict that from the scene of offence empty cartridges and bullets were recovered. Panchanama was drawn up and the empty cartridges, bullets and two pieces of bullets recovered from the stretcher on which the deceased was kept were sent to the chemical analyser by the police.;